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Biting the Hand That Feeds You: Facebook Postings About Your Employer May be Protected

BITING THE HAND THAT FEEDS YOU:  NLRB SAYS EMPLOYERS CAN GO TOO FAR WHEN THEY PENALIZE AN EMPLOYEE FOR POSTING NEGATIVE COMMENTS ABOUT THEIR EMPLOYER ON THE INTERNET

Employees are often warned not to publicly complain about their employer if they want to keep their job.  The thinking is that, like a dog, you shouldn’t bite the hand that feeds you.  This wise advice bumps up against federal labor law that expressly protects the rights of even non-unionized employees to gather and discuss the terms and conditions of their employment (or to complain about those terms and conditions).

In a twist on the old fact pattern of an employee being punished for gathering with co-workers to discuss their employer, a Connecticut woman was fired recently after she posted negative comments about her employer on her Facebook page.  (The employer claimed that the termination was based on performance, not on the Facebook postings.)   The woman sought the help of the National Labor Relations Board (“NLRB”), which took up her cause.  The NLRB sued the employer for punishing what is considered protected speech under applicable federal labor laws.  A recent settlement of the case requires the employer to revise its written policies that previously prohibited employees from (1) discussing the company on the Internet at all without prior clearance or (2) disparaging the company on the Internet.

Readers should be aware that the protections enforced in this case only applied to the employee’s right to discuss the terms and conditions of her employment with co-workers and with other people.  Employers still have the right to protect against the disclosure of confidential and proprietary information, such as trade secrets and other information that may be protected by written agreement.  So employees still should be careful what they say about their employer on Facebook, in person or in any other forum.

There is one other lesson to consider from this case:  Even though the NLRB forced a monetary settlement with the employer and also forced the employer to abandon many of its company policies that had previously restricted what employees could say publicly about the company, the woman did not get her job back.  It is not clear from the information disclosed by the NLRB whether the woman declined to ask for her job, or whether she was paid enough to walk away.  In any event, at the end of the day the employee still had lost her job after biting the hand that fed her.

The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.  Counsel should always be consulted for advice regarding a specific situation.