Employment Law Case Analysis

Tiffany Trader

HLAD312 (25361)

5 February 2018

Employment Law Case Analysis: Facebook

An employee of the foodservice department noticed that the cleanliness of that department was not up to par. This employee made the decision to post negative comments about the cleanliness of the department and how it negatively impacts patient health on Facebook. When discovered, the employer terminated the employee for doing so.

Position

 The employee of the foodservice department, in my opinion, should not have been terminated for posting about the negative impact the cleanliness of the department has on patient health. According to Fried and Fottler (2015), if an employee chooses to use social media to express feelings or provide information in regards to their employers, it is considered “concerted activity,” which is strongly protected by the National Labor Relations Act (NLRA). Many employers include provisions and policies, concerning social media, that violate the protections found in section 8(a)(1) of the NLRA and are usually given the advice to review and eliminate those provisions or policies (Fried & Fottler, 2015). Although some employers have been advised to eliminate these provisions and policies, Fried and Fottler (2015) state that some social media policies, such as ones that prohibit online bullying, harassment, discrimination, or retaliation, do not violate the act.

It should be evident in the case of the foodservice department employee that, because his actions fall under the NLRA’s definition of “concerted activity,” he was wrongfully terminated by his employer. Not only are his actions protected by the NLRA, but many state legislatures, at least 26, have attempted to fill the gap between speeding technological advances and the plodding law (Fried & Fottler, 2015).  These states have active legislation with a focus on employee privacy and protection through prohibiting employers from requiring access to an employee’s, or potential employee’s, social media through username and password (Fried & Fottler, 2015). Although this is their main thrust, it can be assumed that these state’s active legislations are also in place for the protection of actions similar to those of the foodservice employee.

Legal Implications

Under section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to

“discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because of their protected, concerted activities” (“Interfering with Employee Rights,” n.d.). In many cases concerning the violation of section 8(a)(1) of the NLRA, like that of the foodservice department employee, the National Labor Relations Board (NLRB) will order the removal of any offending rule in their employee handbook or policies (Fried & Fottler, 2015).