As we have previously reported, whether employees’ social media use is considered protected activity under the law is a hot issue at the National Labor Relations Board (“the Board”). On April 19, the Board issued a ruling that a company violated the National Labor Relations Act (“the Act”) by firing three employees who complained about work on Facebook. Design Technology Group, LLC d/b/a/ Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013).
The employees worked at a retro clothing store in San Francisco selling Bettie Page-inspired items. Soon after the store opened for business, several employees began complaining about their manager to higher-ups in the company. They expressed concerns about safety because the store was open later at night than other businesses in the area and they were being harassed on the street when leaving for the evening. The manager promised to take their concerns to corporate but she never did, leading one employee to speak directly with corporate, who agreed that the store should close earlier.
The manager was upset when she learned that corporate had been contacted and she indicated that the store would return to the later closing time. Several employees then took to Facebook to air their grievances. One employee wrote that she needed “a new job,” she was “physically and mentally sickened,” that “Bettie Page would roll over in her grave,” and that the manager made their “lives miserable.” Another employee responded, stating that the “manager is as immature as a person can be,” that her mother who worked at a law firm would bring a “Worker’s Rights” book to work, and that the other employees would “be surprised by all the crap that’s going on that’s in violation” of the law. The manager found out about the Facebook activity (from a different employee) and fired the two complainers “because things were not working out.”
The Board ruled that the Facebook posts were “classic concerted protected activity, even absent prior action.” The Board rejected the employer’s claim that there were also other reasons for the termination. They also were unimpressed with the employer’s argument that the employees “schemed to entrap their employer into firing them” because they allegedly giggled and hugged when they were fired and later posted on Facebook “OMG the most AMAZING thing just happened!!!!” and “Muhahahahaha!!! So they’ve fallen into my crutches.” In fact, the Board wrote that “even if the employees were acting in the hope they would be discharged for their Facebook postings, the [employer] failed to establish that the employees’ actions were not protected by the Act.” Ultimately, the employees – who only worked at the store for a few months – were awarded reinstatement along with several years of backpay.
Bottom Line
This issue continues to evolve and employers should give careful consideration to whether they are infringing on employees’ rights if they take action against them for complaining about work. Those gripes may reach a larger audience via Facebook but their protected nature may still remain the same.