Fire For Facebook “Concerted Activity”, Risk Getting a Union

by Michael Haberman on June 2, 2011 · 2 comments


Everyone in management today needs to learn the term “concerted activity.” It means trouble in today’s social media world. The National Labor Relations Board has filed yet another complaint against a company for firing workers for remarks made on Facebook. The case involved a company where one employee made a comment about other employees not “pulling their load” in dealing with this non-profit’s clients. Other employees took exception to these comments and commented back about their inability to work more effectively because of working conditions, including staffing and work loads. The agency found out about these comments and terminated these employees for harassing the original commenter. The NLRB filed a complaint on their behalf arguing that the Facebook discussion is a protected concerted activity within the meaning of Section 7 of the National Labor Relations Act because it involved a conversation among co-workers about their terms and conditions of employment.

This is not the first case. There was a similar one last October that was settled this past February. I will guarantee you it will not be the last. The union-friendly NLRB has found a way for unions to make inroads into companies. If there is not already a union in place firing for “protected concerted activity” will make any employer susceptible to organizing attemtps. You have already shown the employees that they need “someone else’s protection”, so when they are approached by union representatives they will be most accepting. And lest you think that you are not covered because you don’t have unions think again bunky, ALL employees regardless of union status are protected by the National Labor Relations Act for engaging in “protected concerted activity.”

So if you are monitoring social media usage, have a policy about social media misuse, tread very carefully before you pull the termination “trigger” and fire someone for something they said about the company. You need to consider:

  • Are they the only one or were others involved?
  • What were they discussing? If it involves wages, hours and working conditions (which includes how crappy the supervision is) then you will be in deep doo-doo if you fire them without a great deal of careful thought.
  • Do  you have a well crafted social medial policy? Does  it include a statement about “protected activity”
  • Is it really worth they hassle?
  • Do you have a good consultant or attorney or both on hand?

And it is not just Facebook. Twitter counts too, as well as the myriad of social media outlets out there. However, according to Pamela Lewis Dolan, who wrote Rethink social media policies in light of NLRB complaint, “National labor attorneys said the complaint makes clear that practices and other employers have the right to tell employees they cannot say things online that would harm the business’s reputation.” So that is the last decision point. Is this harming the company?

You need to pay attention, you can read it here on HR Observations, for future developments. So stay tuned.

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