One of the restaurant’s managers heard about the site and asked one of the forum members for her password so that he could review the comments. The employee gave the manager her password. After management reviewed the forum, the company disciplined the employee who had created it. In response, the employee sued under the state analog to the Stored Communications Act. After a trial, a jury ruled that the manager had coerced the password from the employee. His access to the site, therefore, constituted an illegal access to the material. A federal court later upheld the decision.
The National Labor Relations Board (NLRB) has also entered the social media fray. Though the NLRB typically addresses union organizing issues, its rulings apply to all employees, unionized or not, to the extent that the rulings relate to the right of all workers to engage in “concerted protected activity.” Such activity is defined as interaction with other employees designed to bring about a change in working conditions. Importantly, concerted protected activity is not limited to conduct that occurs at work. Social media interactions can, therefore, fall within this definition. Thus, unionized or not, employers unhappy with employee social media comments regarding work must carefully analyze the nature of the posting before taking corrective action.
In August 2011, the NLRB issued a report on recent cases that involved social media issues. The report can serve as guidance to employers on whether employee activity constitutes protected activity.
The report cites a 2011 case in which a social assistance agency fired several of its employees after they used a social media site to openly criticize the agency and how it was delivering services to the public. In the case (Hispanics United of Buffalo v. Ortiz, NLRB, 2011), the NLRB ruled that the employees’ comments on the social media site, although disparaging of the agency, were concerted protected activity. The agency’s termination of the employees was, therefore, illegal retaliation. The NLRB ordered that the agency reinstate the employees.
In another example, the report notes the case of an employee at a car dealership who posted photographs and negative comments to his Facebook page. The employee complained about the food and drink served at a sales event hosted by the dealership. The employee said the event was unprofessional and would negatively affect sales. The employee was fired when the dealership became aware of the postings. The NLRB ruled that the employee was protected because he noted that several other employees were also concerned and that all of their commissions would be adversely affected by the sales event. All of these issues were clearly related to the terms and conditions of employment and, therefore, constituted a protected activity.