Facebook Firings and Twitter Terminations: The National Labor Relations Act as a Limit on Retaliatory Discharge

In every state except Montana, at-will employment is the default rule, leaving employers free to discharge employees for their use of social media. The National Labor Relations Act’s (NLRA) protection of collective action, however, is emerging as a substantial limitation to at-will terminations. In Hispanics United of Buffalo, the National Labor Relations Board concluded that Facebook posts critical of the non-profit employer were protected as collective action and that the employer’s retaliatory termination of five employees violated Section 8 of the NLRA. To be protected as collective action under the NLRA, an employee’s use of social media must be “concerted,” somehow involving other coworkers, and for the purpose of mutual aid. The employee may lose this protection if her words or conduct are opprobrious, insubordinate, or disloyal as to disrupt the work environment. Furthermore, an employer remains free to terminate the employee for other legitimate reasons unrelated to collective action. Finally, an employer may not distribute or enforce a social media policy which chills or potentially chills collective action