May 6, 2011 Volume 112 Number 9

Workers fired for Facebook posts; NLRB investigates

By DON McINTOSH, Associate Editor

In an online post to her friends on Facebook, Rabecca Forbes vented about her job.

It came to the attention of her employer, Rock Creek Veterinary Hospital in Aloha, Oregon, and Forbes was fired April 1. Two of her co-workers — Kathy Erickson and Amanda Meyers — also were disciplined, for sympathetic comments they made on Facebook in response to Forbes' post.

Such incidents are becoming increasingly common, says Sarah Drescher, a labor lawyer at Tedesco Law Group in Lake Oswego. Drescher has represented workers in similar cases, and spoke on a panel at an April 20-21 conference on "Discipline in the Age of Social Media" organized by the Oregon chapter of the Labor and Employment Relations Association (LERA).

"More and more people are using social media on a daily basis," Drescher said. "It's become a means of communication just like the phone used to be."

Except that, unlike telephone remarks, statements posted on Facebook can remain out there for anyone to see.

Forbes has taken down the Facebook post that got her fired. But she also filed a complaint with the National Labor Relations Board (NLRB), arguing that Rock Creek Veterinary Hospital violated federal labor law when it disciplined her and her co-workers for what they said on Facebook.

Such Facebook posts could be considered "protected concerted activity" under the National Labor Relations Act, the law that the NLRB enforces. That law makes it a federally protected right for two or more employees to discuss pay or other work-related issues with each other — whether they're in a union or not.

NLRB currently has six such cases before its Seattle regional director alone.

"It's an emerging issue," says NLRB Seattle Regional Director Rich Ahearn. "But from our perspective, it's really no different than if these comments were made at the water cooler."

Last October the NLRB took the position — for the first time — that a worker's Facebook posting was protected activity. American Medical Response of Connecticut had fired paramedic Dawnmarie Souza, a member of the Teamsters, after she complained on Facebook about a supervisor. Souza used impolite language, calling him a "17" — paramedic code for a psychiatric patient. Co-workers, and even a supervisor, joined in and commented approvingly, and Souza responded to their comments.

AMR reached a settlement with Souza and the NLRB in February 2011. In the settlement, the company pledged to revise its over-broad rules about blogging, Internet posting, and communications between employees, and promised not to discipline or discharge employees for discussing work issues when not on the job.

"Whatever protection exists in the workplace also exists in cyberspace," Ahearn said.

Of course, that means union workers may have better protection than nonunion workers. In Oregon and most states, nonunion workers (like the fired veterinary hospital worker) are considered "at will" employees, which means employers don't have to give a reason for terminating their employment. By contrast, union contracts almost always require employers to have "just cause" before they discipline a worker.

Ahearn said the law doesn't give workers a license to make unfounded accusations, but simply complaining about work is likely to be considered protected activity.

For her part, Drescher advises workers to be cautious.

"To avoid problems and make your life easier, don't put your co-workers and supervisors on as your friends on Facebook," Drescher says. "I had a case last year that if the employee had taken that advice, she'd still have her job. People have different sensibilities of what's inappropriate and what's not, and you take some risks if you put things on Facebook — pictures or statements — that co-workers may find offensive morally and will complain about to an employer."

Home | About

© Oregon Labor Press Publishing Co. Inc.