#Fired: The National Labor Relations Act and Employee Outbursts in the Age of Social Media

INTRODUCTIONImagine a time before the advent of social media websites.1 An emergency medical responder has had a long day. Multiple calls, difficult patients, piles of paperwork, and an uncompromising boss have driven her to her wit's end. She arrives home and shouts to no one in particular, "Leave it to my company to hire a mental patient as a supervisor!" Assuming that the remarks are somehow overheard, the law provides no protection for the medical responder, and she could face discipline from her employer. More likely, however, the words spoken in the privacy of her home go unheard. The medical responder calms down, goes to sleep, and uneventfully returns to work in the morning.Fast forward to today. That same employee has had the same terrible day. After meeting with her supervisor, she goes home and makes the same exclamation. This time, however, the statement is made on Facebook, and by clicking "post" the employee publishes her remarks for her social network to view. Now, friends and coworkers can view the post, and some might even respond and express their own frustration. The message spreads through the employee's social network and beyond, eventually landing on the desk of her supervisor. After the supervisor becomes aware of the comment thread, she fires the employee.2The explosion of social media in the early 2000s has led to an unavoidable collision with labor and employment law.3 Facebook, founded in 2004 by Mark Zuckerberg, is one of the most popular social media platforms.4 Facebook allows users to find and connect with "friends" by typing their information in a search bar and requesting an online friendship.5 Friends can then keep in contact by posting comments, videos, or pictures on each other's profile page.6 Facebook, along with other similar social media sites,7 not only shares these posts among friends and other users, but also maintains them, providing a record of comments and conversations.8The prevalence of social media and the archived record of these posts have created a number of legal issues in the employment context.9 Employers are put in a particularly difficult position of having to balance the positive and negative impacts that social media might have on their companies.10 For example, many employers utilize social networking sites to locate and recruit new employees.11 Social media has also promoted innovative marketing strategies that allow employers to directly reach prospective consumers, unlike traditional print advertising.12With this innovation, however, comes increased exposure to liability for employers, whose frustrated employees may now use social media to voice work complaints.13 Social media's massive personal and professional networks connect coworkers whose online communications distinctly affect employers, unlike ordinary private communications and complaints.14 These archived social media communications expose employers to the possibility of defamation claims, improper disclosure of confidential information, and damage to the employer's reputation.15 With this exposure in mind, some employers have responded to these online communications by terminating employees, implicating the National Labor Relations Act ("NLRA") and its protection of concerted activity.16This Note argues that employee intent should be the standard for determining whether social media posts constitute concerted activity under the NLRA.17 Part I explains the statutory framework for concerted activity and the National Labor Relation Board's ("NLRB") interpretation of concerted activity.18 Part II then discusses how the NLRB has applied the concerted activity standard to social media cases. 19 Part III argues that the concerted activity standard creates inconsistencies when applied to social media cases and that the NLRB should alter its interpretation of the standard to account for the realities of the online world.20 Part III suggests that in defining concerted activity in social media cases, the NLRB and courts should consider employee intent rather than the unpredictable responses online. …