Workers griping on Facebook at risk of job loss after ruling

Posted: January 31, 2013

Workers who gripe about the boss or their colleagues on Facebook may again be at risk of getting fired unless a U.S. appeals court decision is reversed.

The National Labor Relations Board ruled last year that employees can use social media to complain or comment on management, without retribution. The decision was among 220 issued in 2012 by the five-member board, three of whose appointments were ruled invalid last week by the U.S. Court of Appeals in Washington.

"It puts all of the board's actions into question," said Jeffrey Hirsch, a professor at the University of North Carolina School of Law. "If you're an employee who's been fired, and you want your job back, you're not going to get it until this is resolved."

The unanimous ruling may upend decisions involving companies such as Dish Network Corp. and Gannett Co. on a range of issues related to negotiations over contract terms and access to the workplace when employees are off duty, and whether union dues can be deducted from paychecks after collective-bargaining agreements expire.

The NLRB enforces labor law and investigates complaints brought by employees, management and unions.

In one of two Facebook-related cases, the board on Dec. 14 ordered Hispanics United of Buffalo Inc., a nonprofit, to reinstate and restore the pay of five employees fired in 2010 after they joined a Facebook discussion to defend their work against comments by a co-worker. The organization dismissed the five workers, citing harassment using Facebook.

In September, the board directed a Chicago-area BMW dealership to rescind a policy in its employee handbook barring language that might harm the dealership's image. The board did not require Karl Knauz Motors Inc. to rehire a worker who used his Facebook page to mock a sales event and post photos of an accident at a co-owned Land Rover dealership.

A 2012 review of seven cases before the NLRB found at least six employers had social-media policies that were "overbroad and thus unlawful" under U.S. labor law, according to a May report from Lafe Solomon, acting general counsel.

The appeals court ruling last week may prompt employers to ignore some of the 2012 decisions, including policies regarding workers' use of social media, said Charles Craver, a professor at George Washington University Law School in Washington.

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