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December 2010
Firing for Comments on Facebook Prohibited?
By Eric Bass

     The National Labor Relations Board (NLRB) issued a complaint in October regarding the termination of an employee who posted negative comments about a supervisor on her personal Facebook page. The complaint alleges that the employer maintained a blogging and Internet policy that was overly broad.

     Co-workers responded to the comments supporting the employee and further negative comments about the supervisor were posted. The employer suspended and later fired the employee for the postings as the postings violated the employer’s Internet policies.

The NLRB found that the employee’s comments on Facebook were protected concerted activity.

     The NLRB also found that the employer’s Internet policy had unlawful provisions such as a prohibition on making disparaging remarks when discussing the employer or its supervisors and a prohibition on depicting the employer over the Internet in any way without consent. The NLRB has scheduled a hearing on the case on next month, but the case may still have a long way to go before reaching a final resolution.

     Based on many concerns regarding Internet use and blogging in general, employers must be very careful that:

     • employees do not post supporting comments about an employer or its products on the Internet (in light of Federal Trade Commission concerns);

     • employees are not prohibited from writing about or talking with co-workers and the public at large about their concerns and complaints regarding the employer (however, you may still be able to specifically distinguish and prohibit Facebook or other social media site comments); and

     • employees are not terminated in any way that could be construed as retaliation for voicing concerns.

     Remember, your company does not have to have an employee union in place for many of the rules and restrictions for collective bargaining and related rights to apply to your business.

     It is extremely important to have an experienced, knowledgeable professional review all of your policies and procedures regarding employees at least annually. Laws and regulations are developing rapidly in this era of high unemployment with new and potentially surprising issues being addressed every month.

     Content provided by Wishart, Norris, Henninger & Pittman, P.A., which partners with owners of closely-held businesses to provide comprehensive legal services in all areas of business, tax, estate planning, succession planning, purchases and sales of businesses, real estate, family law, and litigation. For more information, contact Robert Norris at 704-364-0010 or visit

Eric Bass is an attorney at Wishart, Norris, Henninger, P.A.
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