WASHINGTON — Workers who gripe about the boss or their colleagues on Facebook may again be at risk of getting fired unless a U.S. appeals court decision is reversed.
The National Labor Relations Board ruled last year that employees can use social media to complain or comment on management, without retribution. The decision was among 220 issued in 2012 by the five-person board, three of whose appointments were ruled invalid last week by the U.S. Court of Appeals in Washington.
The unanimous ruling may upend decisions involving companies such as DISH Network, Station Casinos and Gannett on a range of issues related to negotiations over contract terms, access to the workplace when employees are off duty and whether union dues can be deducted from paychecks after collective bargaining agreements expire. The NLRB enforces labor law and investigates complaints brought by employees, management and unions.
In one of two Facebook-related cases, the board on Dec. 14 ordered Hispanics United of Buffalo, a nonprofit, to reinstate and restore the pay of five employees fired in 2010 after they joined a Facebook discussion to defend their work against comments by a co-worker. The organization dismissed the five workers, citing harassment using Facebook.
The appeals court ruling may prompt employers to ignore some of the 2012 decisions, including policies regarding workers’ use of social media, according to Charles Craver, a professor at George Washington University Law School in Washington.
The decision also may spur employers who lost a case to file an appeal with the court.
“Any employer that’s thinking of seeking review right now should go to the D.C. Circuit, which they can do,” Arthur Carter, a lawyer with Haynes and Boone in Dallas, said in a phone interview. Employers who have complied with NLRB’s decision during the year may choose not to challenge, he said.