Wrongful Termination for Comments made on Facebook?
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Employers are often concerned with how employees conduct themselves on social networking sites as they are, in a sense, representatives of the company. However employers should be cautious of disciplining employees when it comes to the content of the employee’s posts. More specifically if the post is related to the working conditions the employer should be wary of how they choose to react.
In New York an employee was recently fired from a nonprofit organization for posting a comment about the working conditions. Later an administrative judge ruled this to be a wrongful termination.
Judge Arthur Amchan of the National Labor Relations Board ("NLRB") reviewed statements of five employees of Hispanics United of Buffalo, an entity providing social services to low-income clients. One of the employees created a post on facebook in which she describes the organizations failure to adequately serve their clients. This was followed by other employee’s posts in which they defended their performance. All five employees that participated in this discussion were terminated. According to the employer they were terminated for harassing of the employee of the original post.
Judge Amchan, concluded that these discussions were protected under Section 7 of the National Labor Relations Act, because it was regarding communications among employees about their terms and conditions of employment. As such this ruling set new president for the NLRB. The judge then ordered reinstatement and back pay for the five employees.
There have been other cases in which employers have faced adverse decisions regarding comments made on social media sites. In Connecticut an employee called their supervisor a "scumbag" and derogatory term for male genitalia. The NLRB found a violation of Section 8(a) as the basis of the employee's complaint regarding his supervisor was being denied union representation in connection with filing an incident report. An employee can lose protection under the National Labor Relations Act if they engage in outrageously disgraceful conduct during the course of the protected activity, but the NLRB did not find the employee's conduct to rise to this level.
Employees and employers alike are treading in new waters with regards social media and free speech laws on social media sites. It is important to note the decision in the Hispanics United case and National Labor Relations Act protects both organized and non-organized employees, as well as protects the rights of all employees (unionized or not unionized) to discuss and engage in other concerted activity relating to their working conditions.
If you feel you have been wrongfully terminated due to comments made on a social media Site you should contact an experience labor law attorney to review your case.
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