November 8, 2010
Facebook and Labor Law
Facebook has given us a twofer today, with two recent labor law cases dealing with the Internet social media site. In the first, the NLRB has filed a complaint against an employer alleging that it illegally fired an employee for criticizing her supervisor on Facebook. The Board also challenged the employer's policies that prohibited employees from depicting the employer “in any way” on social media sites and prohibited disparaging comments about co-workers or superiors. Although anything with Facebook is certainly going to catch interest, I'm not sure this is a "ground-breaking case." Acting GC Solomon puts it nicely in his description (from the NY Times):
"This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
What might be particularly relevant about this case is that it will bring the NLRA to the attention of a lot of people who were unaware of its existence in non-union settings (although the employee was represented by the Teamsters here--there was apparently a Weingarten-like issue with regard to a response to a customer complaint--the press on this case is appropriately noting its relevance to all private-sector employers). As I've written about recently, I think one of the biggest opportunities for the NLRB to expand its relevance is to make its applicability to nonunion workforces more known.
The second case is from British Columbia. In Lougheed Imports, the BC Labour Board dismissed a ULP complaint that was based on an employer terminating union activists for their posts on Facebook. The Board considered the comments to be highly offensive, insulting, and disrespectful. Thus, despite some evidence of union animus, the Board found that the investigation and termination of the employees were because of insubordination and disloyalty, rather than union activity. Again, this is a fairly typical case (the Board compared it to inappropriate comments on a shop floor). But if Facebook is what it takes to give labor (or labour) law more attention, then so be it.
Hat TIp: Bill Herbert
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While I agree that the policy in the first case is overbroad under current doctrine, it seems to me that Facebook could present a few new wrinkles. First, what is necesary to make the action "concerted"? Is it enough that the employee making the posts has "friends" who are co-workers? What if s/he doesn't? And, per the Canadian case, I think the "disloyalty" doctrine (arguably much expanded in recent years, Marion Crain has a great article on that) is going to be an issue in a lot of U.S. cases.
Posted by: Joseph Slater | Nov 9, 2010 7:14:21 AM