Terminating Employees Who Are Critical of Employer on Social Media

The National Labor Relations Board (NLRB) has been aggressive in terms of ordering the reinstatement of employees terminated for posting comments online regarding their terms and conditions of employment, including comments that are critical of their employers. A recent advice memo from the NLRB shows this remains an area of enforcement. At issue in the case was an employee who made several comments on Facebook regarding workplace accidents and soliciting input from others, including coworkers, regarding ideas that may improve workplace safety at his place of employment. In his posts, the employee was critical of the company and, in some respects, of his coworkers. When the posts were brought to the company’s attention by some employees who felt disrespected by the comments, the employer decided to terminate the employee based on the Facebook comments. The NLRB determined that the termination was unlawful and found the employee should be reinstated. The NLRB reasoned that the employee’s posts on workplace safety at the company constituted “protected activity” under the National Labor Relations Act because they were made for the mutual aid and protection of his coworkers. This case reminds employers to continue to tread carefully when evaluating whether employee posts on social media can serve as legitimate grounds for employee discipline determinations – even when such comments may be critical of the employer.