By Erin Frankrone*
It may be illegal to fire employees who complain about supervisors or working conditions on Facebook and other social media sites, as such complaints probably constitute protected concerted activity.
On April 19, 2013, the NLRB decided Design Tech. Group, 359 NLRB No. 96 (2013), and found that employees’ complaints and discussions on Facebook were a continuation of direct complaints to the employer, and a discussion of the terms and conditions of employment. Therefore, the Board ruled they were protected concerted activity for their mutual aid and protection under Section 7 of the Act.
The company had contended in defense that it had been entrapped by the employees. However, companies are unlikely to prevail on an entrapment defense in these situations, even if the employees appear to desire their own termination. The NLRB noted that employees’ selfish motives do not deprive them of their rights to engage in protected activities. The key tension in this area is whether employees’ complaints/discussions through social media can fairly constitute the classic concerted activity given the global dissemination of their remarks.
*Erin Frankrone is a Summer Associate at Wyatt, Tarrant & Combs, LLP.