Earlier this week, the National Federal of Independent Business’ small business legal center filed an amicus brief with the D.C. Circuit, arguing that the National Labor Relations Board incorrectly held that employees of a clothing store had engaged in protected activity by griping about work on Facebook.  (See the NFIB Brief here).

The case arose when two employees working for a clothing store in San Francisco, CA asked their manager if the store could close earlier because the employees were being harassed after closing up shop at night.  The manager said she would talk to corporate officials about the issue.  Later, the two complaining employees raised the issue with the store’s owners.  The manager became frustrated and had words with the employees over the phone, prompting one of the employees to complain about “all the crap that’s going on” at the store on Facebook.  That employee, along with her complaining coworker, were terminated.

The Board held that the posts were protected activity, so the employer’s termination of the employees was illegal, a position with which NFIB’s brief disagrees:

“The NLRB’s message to employers is that an employee who participates in a social media exchange relating to their workplace is thereafter untouchable regardless of their admitted, unprotected misconduct,” the brief states. “This message flies in the face of long‐established NLRB precedent.”

We will be watching this matter closely and will make sure to keep you posted on important case updates, so stay tuned.