NLRB Issues A Complaint Against Another Employer Over Employee Facebook Postings

As we previously reported here, the National Labor Relations Board (NLRB) issued on May 18, 2011, a press release announcing the NLRB issued a complaint against a non-profit employer for allegedly violating the National Labor Relations Act (NLRA) by terminating five employees who posted on a co-worker's Facebook page comments critical of their working conditions. According to the NLRB's press release," The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels."

Today, the NLRB issued another press release stating it issued a complaint against a Chicago car dealership alleging the dealership violated Section 7 of the National Labor Relations Act when it terminated an employee for posting on his Facebook page photographs and comments criticizing the dealership for serving only hot dogs and water to customers at a dealership sales event promoting a new model.  Salespersons complained that serving only hot dogs and water could negatively impact their sales commissions. According to the NLRB's press release, "[t]he complaint alleges that the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments." 

Employers should be aware that both the NLRA and the California Labor Code generally prohibit discipline of or discrimination against employees for disclosing to others the amount of their wages or information about the employees' working conditions. In light of those prohibitions and in light of the recent enforcement activity by the NLRB over employee Facebook postings, employers should consult with experienced employment and labor law counsel when considering discipline of employees for postings on social media websites, such as Facebook.

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