Can employees’ critical social media posts about a supervisor be fair grounds for dismissal? In a case filed with the National Labor Relations Board (NLRB), three employees fired for complaining about a supervisor on social media were found to have engaged in protected activity, and their termination was in violation of the National Labor Relations Act (NLRA), (see Design Technology d/b/a Bettie Page Clothing, April 2013).
Employees’ Critical Social Media Posts: Nothing gets Done!
The three employees (females) were sales clerks in a boutique clothing store in the Haight-Ashbury district in San Francisco who had requested the store look into a security system and change the store’s opening hours to allow the women to leave earlier in the evening. The manager (also female) offered to discuss the issues with corporate but nothing came of it. After an angry exchange on the issue, the three employees took to Facebook, posting complaints about being “physically and mentally sickened” by work and referencing their manager as “immature.” One employee stated: “The way she treats us is not okay but no one cares because every time we try to solve conflicts NOTHING GETS DONE!!” At the conclusion of one post the clerk wrote “tomorrow I am bringing in a California Workers’ Rights Book to work … my mom works for a law firm that specializes in labor law …”
Several days later, two of the three clerks were terminated and told “things just aren’t working out.” A month later the third clerk was let go for absenteeism.
Charges were filed with the NLRB claiming that the three were fired for engaging in protected activity under section 7 of the NLRA. At a hearing before an administrative law judge, Bettie Page management argued that the reasons for termination were unrelated to the social media posts (insubordination, negative attitude, unprofessional conduct). However the ALJ found the weight of the evidence favoring the three sales employees. In particular, the judge noted that in responding to the employees’ unemployment claims, Bettie Page attached copies of the offending social media postings stating their “attitude was affecting staff.”
The ALJ concluded that the company’s reasons for discharge arose from the postings, which were for the mutual aid and protection of employees. This was “classic concerted protected activity” under the NLRA for which the employees could not be fired, the board held.