Anyone who doubts that the National Labor Relations Board’s agenda to expand employee rights is gaining momentum should simply take a look around. Among the Board’s favorite targets of late are businesses that terminate employees for making derogatory comments about the employer on social media sites. Despite the harm such postings may cause employers, the Board takes the position that the offending workers are protected against adverse employment action when the postings are “concerted activity” revolving around wages, hours, or other terms and conditions of employment.
The “Facebook wars” have now moved into the
Midwest. Last week the Board’s field office in issued a complaint (see NLRB's press release) against an automobile dealer for firing an employee who “posted on his Facebook page employees’ concerted protest[s] and concerns about [the employer’s] handling of a sales event which could impact their earnings.” (Read the complaint here.) Chicago
At some point, the Board and courts are going to have to resolve several critical issues, such as where the public bashing of an employer crosses the line and becomes malicious disloyalty for which a worker can lawfully be fired. (Should disgruntled employees have some obligation to take up their concerns directly with the employer before embarking on a social media crusade that may harm the business? After all, even in a unionized setting, the parties must generally jump through several hoops, through bargaining or otherwise, before either may resort to more drastic measures aimed at swaying public sentiment against the other side.)
For now, however, expect to see more complaints issued against employers who don’t understand why they should have to keep employing someone whose actions seem designed to cause harm to the company’s business.