Can I be terminated for venting about my employer on Facebook?

February 16, 2012

It depends.  Employees have rights under the National Labor Relations Act (“NLRA”), even in “non-union” places of employment.  That is, employees have a right to discuss their salaries, wages, or form of compensation and other terms and conditions of their jobs with their co-workers and with people who do not work with them.   They also have a right to use their employer’s logo or name in connection with communications with the public about a labor dispute.  Think of the folks carrying signs outside businesses who are in a wage or other labor dispute with their employers.  Sometimes, employers try to infringe on this right by imposing social media policies on their employees that forbid, say, the sharing of compensation information with anyone other than management, or the making of disparaging remarks about the company.  In many instances, an employer’s social media policy will technically violate the NLRA.

However, just because your employer has an overly broad social media policy that steps on your rights under the NLRA does not mean that you can get your job back if you were fired for violating that policy.  There is another layer of analysis that takes place.  For the termination to be unlawful under the NLRA, an employee’s venting about her employer has to be more than just individual griping; rather, the employee must act with other employees, or on their authority with the aim of initiating, inducing or preparing for “group action”.  Bear in mind, too, that if the employee who griped on Facebook or other social media actually interfered with the employee’s own work, her co-worker’s work, or the company’s operations and was disciplined for this interference, the discipline will be lawful.

Recent cases suggest that where the venting employee is joined by other employees who voice similar concerns to those expressed, the conduct will likely be protected.  Notably, however, at least one case came down in part to whether the co-workers did more than simply “like” the comments posted by the disgruntled employee.