Let me give you a hypothetical situation and ask you to determine the legality of actions taken.
You are a small business owner with ten employees. The employees do not belong to a union nor do they have contracts guaranteeing a fixed term of employment or providing protection from termination absent just cause. One of your employees has a Facebook account. She posts a series of negative comments regarding working conditions at your business. Furthermore, three of her “friends” (who are also your employees and are also female) join in the conversation posting additional comments regarding lack of benefits, poor working conditions, lack of staff, heavy workloads, etc. You become aware of these comments and decide to terminate all four employees.
Are these terminations legal? Everything seems to point in the direction of legality. Your employees are “at will” and can be fired at any time for any reason that does not violate employment law. Although the employees are all female, the terminations are not discriminatory under equal employment law based on protected characteristics nor are any of the employees considered disabled under the Americans with Disabilities Act. The common law obligation of employees to be loyal to the employer and not cause the business harm seems to be violated in this scenario in that customers or potential customers reading these postings could decide to take their business elsewhere. Clearly one could argue that the image of the business has been tarnished. There are no employment or union contracts to interfere with the terminations. So the actions are clearly legal—Yes? Unfortunately, the correct answer in a very big NO!
Many small business owners and managers believe that they are not subject to the provisions of the National Labor Relations Act (NLRA) if their workforce is not unionized or if they are not the object of a current union organizing campaign. However, the fact is that virtually all employers are subject to the NLRA. There are several exceptions to coverage but, in general, retail establishments having a combined outflow and inflow of goods and services of $500,000 are covered. For non-retail establishments thefigure is $50,000.Section 7 of the Act gives employees the right to “engage in concerted activities for mutual aid or protection.” A decision by a National Labor Relations Board (NLRB) administrative law judge released in September places discussions on social media sites such as depicted in this scenario under Section 7 protections. The NLRB has determined that these types of postings are the modern day equivalent of employees meeting during their lunch break and discussing working conditions. The terminations are illegal in this scenario and you have committed an Unfair Labor Practice (ULP). You’ll have to bring the employees back on the payroll and pay them back pay. You will also have to post a notice in the workplace saying you have violated the law.
Speaking of notices, you should be aware that all employers covered by the NLRA must post a notice in the workplace no later than November 14, 2011 that informs employees of their rights under the act. This notice has never been required before. You can find the notice and more information at www.nlrb.gov.
For more information about this topic, contact Dr. Larry Phillips, SPHR, management consultant, educator, and author affiliated with Ergo Resource Management Inc.; lwphilli44@gmail.com
