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.
“It puts all of the board’s actions into question,” said Jeffrey Hirsch, a professor at the UNC School of Law. “If you’re an employee who’s been fired, and you want your job back, you’re not going to get it until this is resolved.”
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.
In September, the board directed a Chicago-area Bayerische Motoren Werke dealership to rescind a policy in its employee handbook barring language that might harm the dealership’s image. The board didn’t require Karl Knauz Motors to rehire the worker, who used his Facebook page to mock a sales event and post photos of an accident at a co-owned Land Rover dealership.
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, which found President Obama violated the Constitution in part by making recess appointments when the Senate wasn’t technically in recess, also may spur employers who lost a case to file an appeal with the court.
“Everything now is in chaos-land,” said Gary Chaison, a labor law professor at Clark University in Worcester, Mass.
It’s not yet clear whether all board decisions made since Obama’s appointees took office will unravel or whether challenges will be considered on a case-by-case basis, Chaison said.
“Any employer that’s thinking of seeking review right now should go to the D.C. Circuit, which they can do,” said Arthur Carter, a lawyer with Haynes and Boone in Dallas. Employers who have complied with NLRB’s decision during the year may choose not to challenge, he said.
The NLRB and the Obama administration said the Jan. 25 appeals court decision only applied to a case filed by Noel Canning Corp., part of Noel Corp., a bottler and distributor of PepsiCo products based in Yakima, Wash. The company had gone to the court to challenge an NLRB ruling that required the company to honor an agreement negotiated with a union. Teamsters Local 760, representing the workers, said Noel Canning refused to carry out a written agreement, a claim the NLRB backed.
The administration hasn’t said whether it will appeal the ruling by the three-judge panel. An appeal could include a request to delay enforcement until the case is heard by the full court or possibly the Supreme Court.