The National Labor Relations Board continues to hear numerous cases filed by employees disciplined or terminated for social medial postings that criticize their employers. These disciplinary decisions are often based on outdated social media use policies that contain blanket prohibitions against disloyal conduct or statements that could damage the employer's reputation.

Last week in Butler Medical Transport, LLC v. Rice, an NLRB Administrative Law Judge concluded that an employee's termination for comments made on a fired co-worker's Facebook page was a violation of Section 8(a)(1) of the NLRA. The co-worker was allegedly terminated for telling a patient that the company had declined to repair broken equipment on her ambulance. The plaintiff, along with several other employees, posted supportive comments on her Facebook page, and advised her to seek legal counsel and to file a claim with the labor board. Another co-worker provided the employer with a copy of these comments, and the plaintiff was terminated.

At the hearing, the employer contended that it had not made any decision to terminate the plaintiff when he was called in to discuss the postings, and only reached that decision after he used profanity during the meeting. The ALJ did not find this contention credible, noting an earlier affidavit from the human resource manager stating that the company made the termination decision after it learned of the postings. The Board also rejected the employer's claim that the employee's duty of loyalty superseded his concerted activity rights under the NLRA.

Employers cannot terminate or take disciplinary action against employees for complaints about terms and conditions of employment made to one another, whether in person or through social media. The public nature of the Facebook comments does not change the NLRB's position that such activity constitutes protected concerted activity under federal labor law. Social media policies should be reviewed and amended to make clear that their prohibitions against disparaging or disloyal conduct do not extend to Section 7 concerted activity under the NLRA.