Can you fire an employee over a Facebook post?

Not if the National Labor Relations Board has anything to do with it. The group will argue in court that such postings are protected. What do you think?

Think you can keep employees from grousing about their bosses online? You might find out otherwise when just such a case goes before a judge in January.

The National Labor Relations Board, the independent, quasi-judicial body that settles disputes over labor practices, especially those concerning collective bargaining, issued a complaint last week from its Hartrford, Conn., office alleging that a Connecticut ambulance service illegally fired an employee over a Facebook post. It’s the first such action of its kind.

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions,” the press release about the complaint states.

The company, American Medical Response of Connecticut, had a policy that included prohibiting employees from bashing the company or talking about the company online at all without permission, the press release says.

The company claims the firing wasn’t just over the Facebook post, but was a response to a number of behavioral problems over time.

An administrative law judge is scheduled to hold a hearing on the complaint Jan. 25.

So what does that mean for companies crafting policies about how employees can use social media?

“You’d better be sure that the provisions and policies can be supported in court,” says Shel Holtz of Holtz Communication.

Though this particular case applies to “concerted activity” among a number of employees—the employee who was fired only posted the initial statement, which was followed by comments of agreement from other employees—and a company that participates in collective bargaining, that doesn’t mean companies without unions are free and clear, Holtz says.

“While the NLRB won’t be the one after you, necessarily, it doesn’t mean the policy you have can’t be challenged on the basis of freedom of expression,” he says.

The solution? Give employees the carrot rather than the stick, Holtz says.

“It’s better to offer guidelines than policies,” he says.

Molly DiBianca, an attorney with Young Conaway Stargatt & Taylor, LLP, says she hopes the complaint — which she stresses is only a complaint for now—won’t scare companies off of social media policies.

“For those employers who have implemented social-media policies or guidelines, those policies should be reviewed to make sure any prohibition or requirement is tied to a specific business reason,” she says.

The policy shouldn’t be made up of broad rules that give an employer carte blanche to fire employees using online activity as a pretext, DiBianca says.

“Instead of prohibiting employees from any discussion of the employer online, the policy should prohibit specific conduct,” she says. “For example, posting, uploading, or sharing confidential company or client information or trade secrets. Also, comments regarding other employees, including supervisors, that would violate the employer’s policies on anti-harassment, anti-discrimination, respectful workplace, etc., also can be prohibited. ”

Bruce E.H. Johnson of Davis Wright Tremaine says the complaint seems to be a straightforward extension of protections of other types of speech.

“Section 7 of the National Labor Relations Act, since the 1930s, has protected employees from retaliation for concerted activities for mutual aid or protection,” he says. “The act has no electronic exemption that would protect employee letter-writing or picketing, but would allow companies to punish employees for online complaints. A company’s social media policy cannot contravene the protections of the act.”

Still, Marshall B. Babson, a former member of the NLRB, told The New York Times that there are still some legal grounds under which an employee’s Facebook posts could get him or her fired. It depends on whether the statements are factual and business-related, he says. Personal attacks or defamatory allegations not supported by facts probably wouldn’t be protected.

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