September 16, 2011
An NLRB Administrative Law Judge (ALJ) recently ruled for the first time that an employer had violated the National Labor Relations Act by terminating five employees for comments that they posted on Facebook. According to the employer, the Facebook posts, which were about a co-worker and working conditions, amounted to harassment and purportedly caused the employee to suffer a heart attack. The ALJ rejected the employer’s defense citing a lack of evidence that the posts had harmed the employee or violated the employer’s harassment policy. Furthermore, the judge ruled that the employees’ Facebook posts constituted protected concerted activity because the posts were between co-workers and were about working conditions. Until now, the only source of guidance on how the NLRB might address social media use in the workplace has been from the NLRB’s Acting General Counsel, Lafe Solomon. Though the case signals a new willingness on the part of the NLRB to address social media-related claims, the key question for employers – concerning the legality of corporate social media policies in general – remains unresolved. It is unclear whether this decision will be appealed to the NLRB, but if it is, the Board will likely uphold the ruling.