To: Mr. King
From: Jade. Z., Associate Attorney at Law
Date: November 10, 2013
RE: Facebook Firing
Dear Ms. Hansen,
This is an opinion letter which I will talk about the case as we disused in the past few weeks. Firstly, thank you for meeting with me in the past weeks. After discuss the case with you, I will provide you my advices and my legal opinion according to my professional knowledge. This letter will help you to analyze the case and you can make a qualified decision.
I will first restate the facts, as I investigated before, you can confirm the accuracy. Then, I will provide you with an analysis and explanation with the law and ethical issues which are apply in your case. Next, I will give an example of a likely case happened recently. Lastly, I will suggest you my opinion over this case.
Fred was one of your employees who was a very activity and social person, he has a very active account on the Facebook. Recently, your firm, the King Mercedes & European Cars held a customer appreciation day. For the event, your firm hired a caterer to offer a barbeque picnic to the customers. Fred has posted a picture of the food on the event, and comments that is “sloppy food” to high-end customers. After a week of the “slopping food” posting, your grandson rolled a brand new S Class Mercedes into the pond outside the dealership. Fred also posts the incident on his Facebook, and has snide comments such as, “Grandpa sure is proud now”, “here is how rich kid’s play”. After you know the posts, you decided to terminate Fred. Unfortunately, you heard Fred has hired a big fancy employment lawyer and is going to sue you on unfair labor practices and invasion of privacy.
Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.” An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment. Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity. The first point we can address from the Act is whether Fred posted the comments about his work. The first comment is about the food served on the customer event held by King Mercedes & European Cars, it indeed happened in his work area and work place. The second post is about your grandson rolling a brand new S Class Mercedes into the pond outside the dealership. If the car is belong to the company which Fred worked for, this is a part related to his job.
According to the Sec 7, Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” -Sec. 7, NLRA. In another word, if the comments in Fred’s posts are related to his job, his rights to be against of unfair labor practices are under protection of Sec. 7, NLRA.
For the part of invasion of privacy, even we can address that Employers have the right to monitor employee use of office equipment, there are also some limits. The point we should concerned about is when does Fred posted the comments on the Facebook, is that in the working hours? Another issue is whether Fred has been authorized to use the company’s computer for the personal use? If he has the authorization then it is a problem. Because the company’s right to monitor its network and equipment could be superseded by an expectation of privacy when employee’s personal use is also authorized.
For the ethical issues about this case, there are negative acts on both of you. Even your grandson rolled a car in the pond; Fred’s comments to him are snide and harmful. In the post of the customer appreciation event, Fred should not post the snide comment on social media when he was an employee of this company. As your part, even he has negative comments on social media about the company; it is not a good decision that terminates him by those reasons.
Recently, there is a case about National Labor Relations Board and Facebook disclosure. The board decided Bettie Page clothing company unlawfully fired employees who used Facebook to discuss complaints about their supervisor’s conduct and other work-related concerns. Design Tech. Grp. LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (April 19, 2013). Some of the employee of this company complained that, “management situation in our store has become extremely unstable, unsafe, and unprofessional.” Two of the employers have been fired after the event, however, the NLRA decided is unlawful firing(Arent Fox).
Please do not hesitate to call me with any questions you may have. Also, if there is anything I missed please let me know if possible.

Your sincerely,

Jade