In the case Design Tech. Grp. LLC d/b/a Bettie Page Clothing, the National Labor Relations Board (NLRB) has ruled that employees of a clothing company were improperly terminated based on comments they made on Facebook complaining about their supervisor and expressing their workplace concerns.
According to the administrative law judge’s ruling, which was appealed to the NLRB, workers at Bettie Page Clothing engaged in the following exchange on Facebook:
Holli Thomas: needs a new job. I’m physically and mentally sickened.
Vanessa Morris: It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!!
Holli Thomas: bettie page would roll over in her grave.
Vanessa Morris: She already is girl!
Holli Thomas: 800 miles away yet she’s still continues our lives miserable. Phenomenal!
Vanessa Morris: And no one’s doing anything about it! Big surprise!
Brittany [Johnson]: “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.
Vanessa Morris: hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!
The NLRB found that the administrative law judge (ALJ) had correctly determined that the employer had violated the National Labor Relations Act and that the employees had been engaged in protected concerted activity under the Act.
Furthermore, the NLRB ruled that the ALJ was right in rejecting the employer’s defense that the employees supposedly had schemed to “entrap” the company into terminating them.
The online comments at issue involved complaints that a store manager had been overbearing and unfair, as well as concerns about safety when the stored closed. Ultimately, the store manager was shown the Facebook postings, and thereafter the employees were fired.
While it is one thing for companies to control closely content posted on their own Facebook and social media pages, it is another matter entirely for them to terminate employees based protected speech on the employees’ Facebook pages.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.