NLRB Facebook Settlement Creates More Questions Than It Answers
By Victor Kisch
Stoel Rives — World of Employment,
Oregon Law Firm
On Monday, February 7, the NLRB issued a news release about a settlement in a case in which an employee criticized her supervisor on her Facebook page. In that post, she called her supervisor a “17,” (which is terminology for a psychiatric patient) and said her supervisor was being a “d***” and a “scum***.” This new development has garnered a significant amount of media attention.
We say “development” because, despite the media furor over this case, there was no landmark opinion issued by the NLRB, which is the way the Board makes a policy change or an announces a new policy. Instead, an NLRB Regional Director in Hartford, Connecticut — there are over 35 of them nationwide — decided to issue a complaint alleging the firing of the employee was unlawful and the policy was overbroad.
After the complaint was issued, there was no hearing before an administrative law judge and there was no ruling by Members of the NLRB in Washington. There was simply a settlement for an undisclosed amount, which was likely modest since remedies under the NLRA are limited to reinstatement (waived in this case), back pay and benefits. The company also agreed to revise its policy.
So, what’s to be learned from this settlement? Not much. The basic rule that came into play is an employee’s right to engage in protected and concerted activity – sometimes referred to as “free speech” in the workplace. Under NLRB case law, broad rights are provided to employees to criticize their supervisors, their employer, and, in general, to communicate in the work place about good and bad developments, such as pay raises and bonuses. However, employees cannot make threats of physical violence and they cannot engage in disloyal conduct.
Unresolved questions going forward include:
(1) Whether an employee is engaged in concerted activity when posting on a social media platform?
(2) What is protected and unprotected on social media, and do the same rules that apply to verbal communications in the workplace apply to social media?
(3) Does it make a difference if the post is done during non-work time?
There are several issues to work through and unfortunately this case clarified very little.
Editor’s Note: For more in-depth analysis and discussion about this case, check out Victor’s appearance on KGW’s Live at 7.