Can you fire an employee for making negative comments about an employer on Facebook? No, according to a National Labor Relations Board Administrative Law Judge (ALJ) in a recent case involving a New York non-profit organization.

An employee from the organization posted a comment about a co-worker.  The initial post generated responses from other employees that were critical of working conditions, including work load and staffing issues.  The organization fired the involved employees, claiming their comments constituted harassment of the employee originally mentioned in the post.

The ALJ ordered the organization to reinstate the former employees and awarded them back pay, finding their Facebook discussion was protected concerted activity entitled to protection under the National Labor Relations Act.

This case is just one in a growing body of decisions that punish employers who terminate employees for social media postings that are critical of the employer, its managers, or any aspect of their working conditions.  Keep in mind, that this ruling applies to all employers, not just those that are unionized.

Please see the attached Client Alert regarding the above-referenced topic.

(click here for PDF download – Medical Marijuana Act)

The National Labor Relations Board’s (“NLRB”) Acting General Counsel recently issued a complaint challenging an employer’s termination of an employee who made negative comments about her supervisor on her Facebook page. The employee referred to her supervisor as a mental patient and sparked additional negative remarks about the supervisor from her co-workers on her Facebook page.  The complaint alleges that the employee’s Facebook comments are “protected, concerted activity” under the National Labor Relations Act and, therefore, her termination based on these comments was unlawful.

The complaint separately challenges the employer’s blogging and internet policy, which broadly prohibits making disparaging, discriminatory or defamatory comments when discussing the Company or its employees.  According to the complaint, the policy chills employees’ exercise of their right to engage in protected concerted activity.

The National Labor Relations Act (“NLRA”) rules relating to protected, concerted activities apply to both unionized and non-unionized employers.  A hearing on the complaint is scheduled for January 2011.  At that time, the NLRB will hopefully provide more guidance for employers on what action, if any, they can take in response to employee comments made on online social networking sites.  In the meantime, you should carefully review your policies to ensure they are not written in a way that could be viewed as chilling employees’ exercise of their NLRA rights.  Also, be very cautious before disciplining an employee for making negative comments about management or the Company.

From time to time it’s prudent to review your federally mandated work posters to ensure they are up to date and legally compliant.  In that regard, I have attached a link to the EEOC’s website that includes a downloadable version of its revised “EEO is the Law” poster that became effective in November 2009.  This new version reflects current federal employment discrimination laws, including the Americans with Disabilities Act Amendments Act of 2008 and the Genetic Information Nondiscrimination Act of 2008 (which became effective November 21, 2009).  A pdf version of the poster in

English and other languages can be found at:  http://www1.eeoc.gov/employers/poster.cfm

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (the “NDAA”), which, among other things, expands the scope of the provisions of the Family and Medical Leave Act (FMLA) pertaining to leave for qualifying exigencies and military caregiver leave.

Specifically, the NDAA now permits family members of  active duty service members in the regular Armed Forces who are deployed to a foreign country to take leave for a qualifying exigency.  Previously, only family members of National Guard and Reservists called to active duty in support of a contingency operation were permitted to take leave for a qualifying exigency.  The NDAA also extends the scope of military caregiver leave to families of certain veterans, who previously were not covered by the provision.  It also permits military caregiver leave for serious injuries or illnesses that are the result of pre-existing conditions that were aggravated by service while on active duty.