If an employer terminates or disciplines an employee for engaging in protected social media activity, then the employee may file an unfair labor charge against the employer (or, most likely, the employee will visit an attorney who then files the unfair labor charge on the employees behalf). The National Labor Relations Board (NLRB) will expeditiously investigate the charge to determine whether formal action should be taken. If the NLRB believes that the employer may have engaged in an unfair labor practice, then it will file a complaint against the employer and require the employer to respond within 10 days. In response to certain egregious conduct, the NLRB is also authorized to seek an immediate temporary restraining order against the employer from a Federal District Court. The matter is then referred to an administrative judge for determination.
Upon finding that an employer has committed an unfair labor practice by interfering with an employee’s Section 7 rights, the NLRB may impose various statutory remedies. If an employee was wrongfully terminated for engaging in Section 7 activities, then the NLRB can order that the employer to reinstate the employee. As part of the reinstatement process, the employer may be required to readjust the employee’s seniority, benefits, and status within the workplace. The NLRB may order that an employee’s file be expunged of any record of the wrongful discipline or termination.
In order to make an employee whole for any loss of pay resulting from a discharge, refusal to reinstate, or other change in employment status, the NLRB may also order that the employer compensate the employee through back pay. So this begs the question:
Should You Fire over Facebook?
Many companies have disciplined their employees over their social media posts or instituted policies prohibiting certain online activities. But are these employment practices and policies legal? In my next webinar, I will teach you about important labor and employment law issues in the context of social media in the workplace and how to manage employee social media use.
January 22 | 12:00-1:30 est | $150 Live or OnDemand
1.5 Hours of CLE Credits Approved in Florida, Louisiana, South Carolina, and Nevada
Approval Pending in California and Georgia