NLRB Weighs in on Facebook Posts and Employee Discrimination

Many laws, including the Civil Rights Act of 1964, have been passed throughout the years to protect workers against discrimination or retaliation on the basis of race, religion, sex, age, religion or political affiliation, among many others. As technology expands into our 21st century, doors have opened for new ways for employers, in particular, to discrimination against employees. Facebook is one such example.

The most popular social media site known as Facebook is everywhere; in America and all across the globe and is likely here to stay. Facebook, Twitter and various other social media outlets have become an essential part of everyday 21-century life for many people and have given individuals and their friends a forum to express their views and opinions.

However, this type of open display of speech unlocks a potential downside. Much of what people post on Facebook is public and accessible by not just friends, but employers, collection agencies, educational institutions and other entities and has been used against them.

This exact scenario was highlighted in the news and addressed by the National Labor Relations Board.

NLRB rules Facebook posts protected

The scenario involved a union employee who posted a disparaging remark about a work-related situation on Facebook. The discussion ultimately led other employees to post their comments on the network. The employer found out and several of the employees were fired.

The employees took their case to the National Labor Relations Board. The NLRB, as it's known, is the federal agency that oversees public or union employees rights-one being the right to collectively bargain.

The Board ruled that the employer took unlawful action in violation of the 1935 National Labor Relations Act. Under the Act, employees have "the right to take collective action to improve their working conditions" and any of their "concerted activity" cannot be punished by their employer. The NLBR said that the discussion on Facebook was in fact a "concerted activity" and thus protected. Therefore, the Board ruled that the employees were unlawfully terminated. The Board ordered the employer to not only pay back wages to all five previously fired employees but ordered their return to work.

Protection extended ONLY to Public, Union employees

So, it seems Facebook posts are protected and employees are able to post and comment freely without fear of ever being fired or retaliated against by their employer, right?

Well, the rulings on Facebook and employment discrimination, unfortunately, are still in their infancy. Additionally, it's important to note that the NLRB's decision protecting Facebook updates only applies to public employees or those in a union.

Private employees or "at will" employees do not have this protection. Aside from protections afforded under Title VII of the Civil Rights Act of 1964, for instance, non-union employees can essentially be fired for any reason including Facebook posts.

Despite the ruling only applying to a sub-set of the American population, the ruling has no doubt started a discussion that will likely continue to remain in the public eye and open the doors for more clarification from the NLRB and courts.