SERB Addresses Social Media Termination Case

In our October 2011 newsletter, we advised you of a recent memorandum issued by the General Counsel for the National Labor Relations Board (NLRB) regarding the recent explosion of cases involving social media use by employees.  

NLRB opinions are not binding upon Ohio Public Employers.  However, the State Employment Relations Board (SERB), which has jurisdiction over Ohio public employers, will often follow NLRB precedent.  On November, 22, 2011, SERB had the opportunity to weigh in on a social media termination case handled by DFHK Attorneys Brad Bennett and Todd Ellsworth. 

In SERB Case #2011-ULP-08-0225, an EMS employee posted several negative comments about the EMS Director and co-workers on her personal Facebook page.  A co-worker shared the posting with the Director.  The Director immediately issued the employee a warning and told her to “cease and desist” from posting any further derogatory comments regarding the employer, its employees, or management.

The employee ignored the Director’s warning and posted further derogatory comments about a co-worker on Facebook, calling the co-worker a “Fuctard.”  She was fired when the Director was advised of the new Facebook posting. The employee subsequently filed an Unfair Labor Practice charge with SERB stating that her termination was really based upon the fact that she was instrumental in leading a very recent (and successful) Union organizing campaign against the Employer. 

SERB dismissed the charge, finding that the Facebook postings contained no reference to union activity and that the Employer sufficiently established a lack of knowledge of the employee’s union involvement. Based upon this case, public employers can breathe a little easier when faced with disciplining employees for using social media to post derogatory comments about the employer or its employees.  A well-defined policy will be helpful whenever an employer finds itself dealing with a disciplinary issue in this dynamic and evolving area of the law.        

For more information about this case or to receive a copy of the decision, please contact Brad E. Bennett at bbennett@downesfishel.com