Dealing with Unfriendly Employee Facebook Postings
One of your line cooks, posts on his Facebook page that the owner of the food truck he works on is a tyrant and a sadistic bully, and your service window attendant comments in response that the truck’s food is bad and she shouldn’t be forced to share her tips. Of course you end up firing these employees for publically disparaging your business and they contact the National Labor Relations Board (“NLRB”). Do you know what happens next?
Life as a food truck owner will get very tricky very fast. The National Labor Relations Act (“NLRA”) gives non-management employees the right to engage in acts of “mutual aid or protection” (concerted activities), and it is a violation of Section 8(a)(1) of the NLRA to interfere with or retaliate against concerted activities. Arguably, the original post is a complaint about working conditions made on behalf of his co-workers, and the response has also raised concerns common to the coworkers. In the past, the NLRB has indicated a willingness to apply the concerted activities rules to Facebook postings. In light of its recent administrative actions, the NLRB would likely demand that you settle with these emploees (and reinstate them with back pay). If you refuse, the NLRB could bring an administrative action and hold a hearing on the matter. If you lose the hearing, you may be forced to rehire them and pay them back wages. Either way, you will be forced to incur substantial legal fees and administrative costs.
The bottom line is when employees complain about working conditions, wages, unionization, rest periods, or any other issue common to co-workers, retaliation for those complaints (even if crude, inappropriate, or vulgar), or attempts to constrain those complaints, may bring unwanted scrutiny from the NLRB.