NLRB Guidance on Handling Employee Social Media Postings

A recent NLRB decision provides some broad guidance for employers on how to handle an employee who posts unfavorable comments about the employer on social media. Butler Med. Transport, LLC and Michael Rice and William Lewis Norvell, 365 NLRB No. 112 (N.L.R.B. July 27, 2017). In the case, the NLRB separately considered whether the terminations of two ambulance company employees who posted about the company on Facebook were lawful – and came to opposite conclusions.

First, the NLRB considered a comment one employee made in response to a former employee’s post about her own discharge. The employee commented, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.” He also suggested, “[Y]ou could contact the labor board too.” The ambulance company discharged the employee under its policy on employee social media usage which read, “I will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.”

The Board decided the employee was engaging in protected concerted activity in that the employee was offering “advice about future action” and his comment was made “for the purpose of mutual aid and protection.” As such, the employer was not within its rights to terminate the employee for the Facebook comment. The NLRB further determined that the company’s social media policy was unlawfully written in that it could be read to prohibit protected concerted activity.

In contrast, the NLRB determined that the ambulance company lawfully terminated another employee who posted that one of the ambulances “broke down” even though the ambulance had not actually broken down. The employee used profanity in his post, and it was liked by two people; however, the NLRB did not rely on these facts to hold the company was within its right to terminate him. Rather, it relied on the fact that the company performed an investigation to determine whether the ambulance assigned to the employee actually experienced any maintenance problems and found that it had not. Thus, the employee’s post was determined to be “maliciously false,” removing any protection from the post that may have otherwise existed.

Based on this recent NLRB case and prior rulings, when considering discipline of an employee who has talked about his or her employer using social media, employers first should make sure they have a solid and lawful social media policy. Developing a compliant policy is exceptionally difficult in today’s climate because NLRB policies and decisions focus on whether an employee could read an employer policy as prohibiting protected activity. As a result of such misdirected focus, the NLRB has issued decisions which, according to Chairman Miscimarra, has led to “absurd results” in terms of dealing with employee use of social media.

As long as the NLRB continues down its current path, employers should tread carefully before terminating an employee for a social media post. Even a false statement – as opposed to a maliciously false statement – can be considered protected concerted activity.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.