There is no doubting increased social media use around the world means people are more connected to each other today than ever before. All it takes is a quick Facebook search to locate a person’s whereabouts, activities, and interactions with colleagues, friends, and family. This expanded access to information has led many employers to monitor and regulate the words and conduct of their employees outside of work, and at times, to terminate a worker’s employment for what the employer views is unsavory, disparaging, or unflattering behaviors. Most recently, actress-comedienne Roseanne Barr lost her job and had her self-named TV series cancelled because she made a racially offensive tweet about Valerie Jarrett, a former senior aide to former President Obama. While this may be an extreme example, it begs the question, “To what extent can an employer terminate an employee for their behavior outside of the workplace, specifically, for their social media use?” The answer is not entirely clear.
Generally, employees in New Jersey are considered at-will, meaning their employer can terminate a worker’s employment for any reason or no reason, including social media use, so long as the termination does not violate law. However, the National Labor Relations Board (“NLRB”) has determined that certain social media use is considered “protected concerted activity” and termination for that type of social media use to be a violation of federal law. The NLRB is an independent federal agency created by Congress to protect employees’ rights to unionize, and also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. https://www.nlrb.gov.
In Meyers II, 21 NLRB 882, 887 (1986), the NLRB defined concerted activity as, “individual employees that seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” In NLRB v. Karl Knauz Motors, Inc., 358 NLRB 1754, 1763 (2012), an Administrative Law Judge concluded that a BMW car salesperson was fired for posting pictures on Facebook related to an accident that took place at a sister dealership, rather than because of pictures posted by him to criticize the food and drink served at a luxury car event attended by that many other salespeople. The NLRB stated the photos of the accident were not protected activity and placed the dealership in a bad light, while the photos used to criticize the food at an event not hosted or sponsored by the employer were examples of protected concerted activities.