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On 24th January 2012, the Acting General Counsel of the U.S. NATIONAL LABOR RELATIONS BOARD (hereafter the “NLRB”) has issued a second report on recent cases that presented  emerging issues in the context of social media.

In the first case, the NLRB addressed the lawfulness of the Employer’s policy prohibiting employees from “disparaging” the Employer in any media, founding that such rule was unlawful.

Moreover, the NLRB also looked at the Employer’s termination of the Employee for having posted comments critical of the Employer on Facebook, founding that such termination was not justified.

The Employee worked in the inbound calls group at one of the Employer’s call centers.

On October 7, 2010, the supervisor informed the Employee that due to low call volume in the inbound calls group, she was being moved to one of the outbound calls groups.

The following day, the Employee approached her supervisor expressing her frustration with the transfer decision (where she was likely to earn smaller production bonuses), arguing that given her high performance level (she was the second best performing employee in the group based on internal statistics) and expressed her frustration with the transfer decision, arguing that given her high performance level, it did not make sense to transfer her.

After arriving home, she updated her Facebook status: she stated – using expletives – that Employer had messed up and that she was done with being a good employee.

The Employee was connected (Facebook “friends”) with approximately 10 colleagues including her direct supervisor.

Such status update was commented by several colleagues expressing their support and one of them also suggested to bring a class action lawsuit.

The Employee returned to work on October 12 and she was told that she was being terminated due to her comments on Facebook  and the Employer showed her a copy of her Facebook wall from October.

The NLRB found that the Employer rule which prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” was unlawful because such rule tended to chill employees in the exercise of their Section 7 rights.

In fact, Section 7 of the National Labor Relations Act states: Employees shall have the right […] to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.

The Board, moreover, considered the discharging of the Employee concluding that the Employer unlawfully terminated the Employee in response to her protected activity.

In Meyers II Decision (Meyers II, 281 NLRB at 887) the NLRB, in fact, stated that the definition of concerted activity which is protected under Section 7 “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action.”

The Board, as a result, stated that the Employee’s initial Facebook statement and the discussioni it generated clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which surely encompasses employee initiation of group action through the discussion of complaints with fellow employees.

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