Facebook Firings: What's 'Protected' By NLRB?

By Andrew Chow, Esq. on March 05, 2011 | Last updated on March 21, 2019

We've written a lot about employees' use of social media, and what employers can and can't do in response. But a report on Facebook firings shows exactly which kinds of words the NLRB has considered "protected" by law.

What's protected? A status update calling your boss a "scumbag," according to The Wall Street Journal.

What's not protected, according to the National Labor Relations Board? Calling bar patrons "rednecks" and saying you hope they choke on broken glass.

As we've explained previously, the National Labor Relations Act of 1935 protects employees' rights to complain about working conditions such as salary and safety concerns.

The protection is strongest when a worker speaks up on behalf of others, NLRB Acting General Counsel Lafe Solomon told the Journal. There's no protection when workers are merely complaining, he said.

Over the last year, the NLRB has received more than 100 complaints from workers accusing employers of improper Facebook firings, the Journal reports.

A little more than half the complaints were determined to have merit, according to the NLRB. Those cases are usually heard by an NLRB judge.

While the NLRB has not issued specific guidelines about which words are protected, the Journal looked into a few cases and found:

  • A paramedic's Facebook update calling her supervisor a "scumbag," posted from the paramedic's home computer, was protected, the NLRB asserted. The comment came after the supervisor denied the medic union representation at a workplace meeting, as required by law, the NLRB said. The case was settled just before trial.
  • A warehouse worker's Facebook post, saying he was "a hair away from setting it off" in his warehouse, was not protected, so his firing was upheld. Managers said they feared a workplace shooting. The worker's lawyer has appealed.
  • A bartender's Facebook comment that his customers were "rednecks" whom he hoped would choke on glass was not protected. The NLRB took no action on the complaint over his firing.

NLRB lawyers say potential legal action depends on the facts of each Facebook firing case. Still, experts tell the Journal they hope the NLRB will soon update the status of the law with clearer guidance.

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