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NLRB Determines Some Facebook Postings Don’t Have Federal Labor Law Protections

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10/29/2012 // San Francisco , CA, USA // Keller Grover LLP // Eric Grover // (press release)

San Francisco, CA — Since the rise in popularity of social media networking sites like Facebook and Twitter, there has been an ongoing debate as to whether or not it is lawful to fire someone for the content on an employee’s social media pages. A ruling by National Labor Relations Board (NLRB) has recently clarified some of the issues in the debate by determining that certain social media postings are not protected under federal labor law, reports Eric Grover, a Bay Area employment lawyer. A separate ruling addressed corporate social media policies for employees.

In the case addressing corporate social media policies, the United Food and Commercial Workers Union, Local 371 brought a case against Costco Wholesale Company alleging that Costco’s social media policy violated employee rights provided by the National Labor Relations Act (NLRA). The NLRB determined that the policy is “overly broad,” and that these broad policies are unlawful, ABC News revealed.

The social media policy read: “Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”

According to the NLRB, such far reaching workplace social media rules could be understood by employees as an attempt to restrict certain rights outlined in the NLRA.

In a separate case that clarified issues regarding social media communications, the NLRB determined that the firing of a car salesman was not a wrongful termination because the employee’s social media updates were not protected under federal laws.

The Chicago-area salesman reportedly posted a pictured of an SUV accident on his Facebook page with a caption that read “Oops.” A 13-year-old apparently hit the gas by accident during a test drive and the car ended up in a pond. The employee also made other Facebook postings that mocked the dealership for providing hot dogs and bottled water by stating, “No, that’s not champagne or wine, its 8 oz. water. “ The latter posting was deemed to be protected communication, but was not related to his termination.

The NLRB determined that social media postings are only protected under the NLRA if they concern working conditions or wages. Virtually everything else is posted at an employee’s own risk.

The director of NLRB public affairs, Nancy Cleeland, stated, “We want to be sure employees know that under federal labor law, they have a right to discuss their wages and working conditions with each other, and to join together to try to improve them. Those rights have existed since the National Labor Relations Act was enacted in 1935. Today, we are merely extending those protections to new forms of communication, such as Facebook. But not all work-related social media posts are protected, and some behaviors can cause an employee to lose protection”

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