Business Litigation Alert: "Social Media Ghost Stories"

Employers Beware!

At the intersection of social media and the workplace, it’s still scary out there.

Recently, five employees of a nonprofit organization were fired for complaining about their jobs and a co-worker to each other on Facebook. The employees were terminated on the grounds that they were harassing the co-worker, but the National Labor Relations Board (NLRB) disagreed, concluding that the employees were within their rights to converse with each other about working conditions. The employer was then ordered to rehire the employees, with back pay.

Here’s what’s scary about this case:

  • The NLRB judge ruled that the Facebook posts were conversations about the employees’ working conditions, and therefore within the scope of protected workplace speech, despite the public nature of Facebook!
  • The NLRB ruling is the first social media case that did not involve a unionized workplace.
    So how can a company avoid the same ghastly fate?

Answer: Owners and managers must be well informed of their company’s social media policy, and the laws that regulate dealing with social media “infractions.”

While an unflattering Facebook post might cause a company some embarrassment, hastily terminating an employee – without careful consideration of the law – could put a company in the middle of a public relations and litigation nightmare that doesn’t go away when the sun comes up.

Jeff Elkin is a partner in the litigation section of Porter Hedges LLP.
He can be reached at 713.226.6617 or

This information is made available for educational purposes only and does not offer specific legal advice or create an attorney-client relationship with the Firm. Do not use this information as a substitute for specific legal advice. Attorney advertising

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