The rise of the Facebook generation with its attendant practice of sharing its secrets and concerns with friends and foes in social media has lead to a whole new area of potential employment litigation. More employers are now looking at social media interchanges like Facebook and LinkedIn to develop background information on potential hires. From an employer’s perspective that makes a great deal of sense. There are amazing things that are shared on the Internet.
The National Labor Relations Board has been struggling with a number of social media related firings and there have been a number of rulings that the firing of employees for complaining about working conditions on the Internet is a violation of Section 7 of the National Labor Relations Act, which protects the “concerted activities” of workers who engage in discussions about the terms and conditions of their employment.
Hispanics United of Buffalo, is an organization that provides social services to low-income clients. An employee of the company posted a comment on her Facebook page that other employees were not doing enough to help the clients of the company. Some of the employee’s co-workers responded with criticism of the company’s working conditions. Another employee who saw the comments complained that the discussion was “cyberbullying,”a new word gaining much credence and use. Hispanics United fired the employees engaged in the discussion and were ordered by the NLRB to reinstate them with back pay because their discussion was “concerted activity” under section 7.
There can be a very fine line between “concerted activity” and libelous comments which are not protected and can give rise to whole different take on expression. The better rule might be that “if you can’t say something nice, don’t say anything at all.” Mom was always right.