Employers often confront the question of whether employees can be disciplined for using social media, such as Facebook, to communicate with other employees about complaints regarding terms and conditions of employment. Frequently some of those communications are expressed in terms that are offensive and disparaging about the employer and/or specific supervisors.

In deciding whether employees may be disciplined for such communications, the National Labor Relations Board (NLRB or Board) evaluates whether the communication posts are sufficiently disloyal, reckless, or maliciously untrue to lose the protections provided to employees by the National Labor Relations Act.

The Board has held that where the purpose of the employee communication is not to disparage the employer’s products or services or undermine its reputation, but, rather, to seek group action to pressure the employer to act with respect to problems in terms or conditions of employment, the employee communications are protected. Therefore, the employer would commit an unfair labor practice if it disciplines the employee for such communication posts in social media. [1]

In situations where the employee’s offensive outburst takes place at a meeting with supervisors, the Board considers the following factors to determine whether discipline is justified by the outburst:

1) The place of the discussion;
2) The subject matter of the discussion;
3) The nature of the employee outburst; and
4) Whether the outburst was provoked by employer’s unfair labor practices. [2]

[1] See Valley Hospital, 351 NLRB 1252 fn. 7 (2007), and cases cited therein.

[2] Atlantic Steel Co., 245 NLRB 814 (1979).