National Labor Relations Board: Facebook Ruling

November 9th, 2010 - Erin Johnston

NLRBThe National Labor Relations Board has made an interesting ruling in a case where an employee alleges that she was fired due to criticizing her supervising on her personal Facebook account.

According to The New York Times article, the employee “discussed” her frustration with her supervisor with other employees on her personal Facebook account.

The employer involved in the decision had a policy against posting a picture of themselves and depicting the company “in any way” on Facebook or other social media sites. It seems a vague policy that would also bar employees from speaking positively about the employer on Facebook, MySpace, Twitter, or LinkedIn (all social media sites that can include a picture of the poster. It is hard to believe that a Tweet talking up the company and its staff would result in a swift punitive action by the employer; whereas a negative Tweet may. However the policy, as written, does appear to allow such action.

The National Labor Relations Board (NLRB) decision hinges on an employee’s right to discuss employee related issues with other employees. It seems that the employee’s Facebook discussion was with other employees, and a Facebook conversation with other Facebook “friends” may not be protected. In addition, if a group of employees discuss something about non-work related this may not be protected speech.

One issue that is not addressed is how employees are protected from cyber-bullying from employee groups on Facebook. This case provides a case study as the employee disparages the character and competency of a particular supervisor. When does protected speech become bullying? How can the NLRB ensure that this discussion was privately held among employees and not broadcasted to a predominately non-employee group? If someone other than employees commented would the findings be the same?

What can be assumed as the intent of the rule is to protect employees who engage in conversations with fellow employees about workplace issues including wages, working conditions, and unionization. These are important protections, but somehow the policies must be enforced without subjecting employees to bullying or public ridicule.

It seems that this is a case of a workplace conflict not being addressed proactively. The employer company would benefit from fostering a culture of proactive conflict resolution, providing a venue for the aggrieved employee to address the conflict through an effective worksite mediation program.

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