Who CAN you fire for their social media activity?

Not all employees are protected from termination for social media activity
Not all employees are protected from termination for social media activity

Most people in business have heard of the clamp down on companies firing employees for their use of social media. This is a result of the work of the National Labor Relations Board who says they are protecting the right of employees to engage in “protected concerted activity” as detailed in Section 7 of the National Labor Relations Act. Everyone always writes about the people that are protected that an employer cannot fire, but that begs the question “who can you fire?”

Who is NOT covered by the NLRA?

Even though the law is talked about in terms of “covered employees” that does not mean that an employer is totally unprotected. Not all your employees have rights under the National Labor Relations Act. The Act specifically excludes individuals who are:

  • employed by Federal, state, or local government
  • employed as agricultural laborers
  • employed in the domestic service of any person or family in a home
  • employed by a parent or spouse
  • employed as an independent contractor
  • employed as a supervisor (supervisors who have been discriminated against for refusing to violate the NLRA may be covered)
  • employed by an employer subject to the Railway Labor Act, such as railroads and airlines
  • employed by any other person who is not an employer as defined in the NLRA

The most important term in that list for most companies is “Supervisor” because that is broader than most people think.

Who is a supervisor?

Under the definitions of the NLRA a supervisor is:

Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

This means any manager, or assistant manager, or Human Resources professional, or other management personnel with such authority to assign work is generally not covered.

Can you discipline them for their social media activity?

The answer to that is a big “YES.” By the law these people do not have the right to engage in protected concerted activity. You can find examples of that here and here. A supervisor or manager or HR person has no protection if they get on Facebook or Twitter and start demeaning and debasing their employer. In most instances they are going to be terminated under “at-will” provisions and have no protection under the NLRA. (There could be state law protection so understand where you are.) One exception to this is if the supervisor is complaining about how the company is handling the NLRA rights of covered employers. The NLRB does extend some protection in those situations.

Is an immediate firing good employee relations?

As in anything other than gross misconduct an immediate termination is never a good practice. If you have someone on the management team who is unhappy about practices and policies perhaps you should listen to them. Being a “whack happy” employer does not do a lot for your reputation and ability to attract and retain good employees. So think before acting, but understand that with this level of employee a NLRA lawsuit is not something you are going to have to worry about.

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