In another interesting case of the NLRB report, the discharge for Facebook Comments has been considered lawful, because the Employee was not engaged in concerted activity.
The employee which worked in a chain of home improvement stores, on September 1, 2010, in response to an incident where her supervisor reprimanded her in front of the Regional Manager for failing to perform a task that she had never been instructed to perform, used her cell phone during her lunch break to update her Facebook status with a comment that consisted of an expletive and the name of the Employer’s store.
Four individuals, including one of her coworkers, “liked” that status, and two other individuals commented on that status.
About 30 minutes later, the worker posted again, this time commenting that the employer did not appreciate its employees, but none of the four coworkers who were her Facebook “friends” responded.
In the following days, the worker informed some colleagues about the incident mentioned in her Facebook posts, bute none of them (including those who “liked” her Facebook status update) considered it as a group concern or desired to take further group action.
The worker, on October 15th was fired for her Facebook postings.
Five days later, the Employer issued a new social media policy which contained some sort of restrictions such as the prohibition to workers to identify themselves, in external social networking situations, as the Employer’s employees unless there was a legitimate business need to do so or in case of discussing terms and conditions of employment in an appropriate manner.
Moreover, such policy contained a rule which stated that employees may not solicit team members while on company property and that employees may not solicit others while on company time or in work areas.
The NLRB concluded that the discharge was lawful according to the fact that worker’s postings were merely an expression of an individual gripe. Such posts, moreover, contained no language suggesting a link to a possible group action and, in fact, no discussion over that matter took place.
Analyzing the employer’s new social media policy, the NLRB concluded that such policy was unlawful because it constituted breach of above-mentioned Section 7 right to discuss their wages and other terms and conditions of employment.
The policy limits employee discussion of terms and conditions of employment to discussions conducted in an “appropriate” manner, without offering a definition or an example of “appropriate” or “inappropriate” manner.
The Board also determined that the no-solicitation rule was unlawfully overbroad, because it constituted an “unreasonable impediment to self-organization”.