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Your Social Media Policies May Violate the NLRA
In February 2010, after a severe snowstorm, a manager at a manufacturing plant asked a female administrative assistant if she had made it into work the day before. When she reported that she did not make it in, the manager laughed and said he knew the female employees would not make it into work that day. Offended by the manager's comment, the administrative assistant reported it to her supervisor and an HR assistant, neither of whom took action. The next day, the administrative assistant used her cell phone to post a message on Facebook, which contained some profanity, and stated that she did not appreciate being told that she was less of a person because she was a woman. One of her coworkers participated in the Facebook conversation that ensued over the next several hours. During the conversation, the administrative assistant made several derogatory comments about the manager without specifically naming him. Report of Acting Gen. Counsel Concerning Social Media Cases, OM 12-31 (Jan. 24, 2012).
Shortly thereafter, another employee told the administrative assistant that he had just been fired. The administrative assistant told the company president that she believed the termination was unfair, and she began to cry in front of him. She then went to a restroom and posted a message on Facebook using her cell phone that indicated that she was very upset and she could not believe that employees were losing their jobs because they asked management for help. When she returned to her work area, the company president asked to meet with her and told her that she was getting upset over something that was none of her business and management did not like that she shared her opinion with other employees. Later that day, during her lunch break, the administrative assistant posted a series of comments on Facebook from her cell phone that stated that it was a very bad day, one of her friends was fired for requesting help, and she had been scolded for caring about the situation. That same day, the company president terminated her employment because of her Facebook posts and because, although she was coached on not getting involved with the problems of other employees, she had continued to voice her opinion on Facebook.
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