Thursday, February 10, 2011

Can I Be Fired Because of What I Write on Facebook?

Any time there is a break-through in technology it is almost certain that legal implications and challenges will arise leaving lawyers, judges and legislators with the problem of discovering whether any laws have been violated and how to adapt the law to changing technology. With the advent of social networking websites like MySpace and Facebook, we have seen a variety of lawsuits arise ranging from privacy law issues to labor law issues.

In the last several months labor lawyers across the country have been keeping a very close eye on a case filed in Connecticut with the National Labor Relations Board ("NLRB") involving an employee who was terminated for posting critical comments about her employer on her Facebook page. The case was settled this past Monday on the eve of the hearing depriving everyone of a chance to learn whether such conduct is protected concerted activity under Section 7 of the National Labor Relations Act ("NLRA"). However, also this week, we learned that another complaint has been lodged with the NLRB concerning an employer's social media policy and whether it violates Section 8(a)(1) of the NLRA, which covers interference with Section 7 rights.

So, until case law is established, it remains uncertain whether an employee who is fired for posting certain content on Facebook is protected under labor laws. As I have opined previously, I believe such actions are protected if the content of what the employee writes is about workplace conditions and not defamatory. Placing such commentary on the internet, in my opinion, is no different than doing so at the water cooler or in any other manner that has been deemed protected under the NLRA.

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