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NLRB Judge Finds Employees Wrongfully Terminated for Facebook Postings

Posted in Labor

On April 27, 2012, an NLRB Administrative Law Judge issued another decision in the growing body of cases involving employee use of social media. In Design Technology Group, LLC d/b/a Bettie Page Clothing (“Bettie Page”) and Vanessa Morris, Case 20-CA-3551, the ALJ found that the employer violated the National Labor Relations Act when it fired three employees after they posted messages on Facebook complaining about their working conditions.

The employees at issue in this case worked at a retail store in the tourist area of Haight-Ashbury in San Francisco. The store closed later than other stores in the area, and employees allegedly felt unsafe closing the shop and leaving when the area was deserted. The manager said she would discuss the store’s closing time with the owner, but the closing time did not change. The same employees then brought their concerns directly to the owner. The owner agreed that the store could close earlier, and informed the manager. The manager was upset that the employees had gone directly to the owner, and several verbal altercations and arguments ensued between the manager and the employees. In response to these altercations, the employees posted comments from their home computers on Facebook about the incidents. The posts included comments like “tomorrow I’m bringing a California Worker’s Rights book to work … BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow.” Another employee, who was friends with the employees on Facebook, forwarded screen shots of their posts to Bettie Page’s owner. After seeing the posts, Bettie Page fired the three employees. One of the employees filed an unfair labor practice charge with the NLRB, which issued a complaint alleging that the employees were unlawfully discharged for engaged in protected activity. The complaint also alleged that the employer maintained an overly-board and unlawful confidentiality rule.

The ALJ concluded that the employees’ posts on Facebook were a continuation of their concerted efforts to change the store’s closing time. The ALJ rejected the employer’s argument that it terminated the employees for other misconduct and found that they were terminated for engaging in protected activity in violation of the Act. Finally, the ALJ concluded that the employer’s policy restricting employees’ rights to discuss their compensation with third parties violated the Act. This result is in keeping with a long line of NLRB decisions holding that employees have a right to discuss their wages with other employees and third parties under Section 7 of the Act.

As we’ve reported on in the past, there have been several other ALJ decisions involving employee-use of social media. Several social media cases are currently pending before the NLRB, but it has yet to issue a decision in any of them. We will continue to monitor this case and the others as they work their way to the Board and report on developments as they occur.