In May 2011, the NLRB filed two unfair labor practice complaints against employers in Illinois and Michigan who had discharged employees following their posts about the workplace on Facebook.  However, in three recent memoranda to NLRB regional offices, the National Labor Relations Board Division of Advice found that employees who posted comments on Facebook about their jobs were not protected from disciplinary action by their employers.  This may signal a moderation of the NLRB's approach to whether employees are protected from discipline for social networking comments about their employment are protected under Section 8(a)(1) of the National Labor Relations Act, which prohibits an employer from interfering with, restraining, or coercing an employee in the exercise of rights guaranteed by the NLRA.

            In each case, the employees posted comments on Facebook regarding individual complaints about their jobs.  For example, in one case, a bartender complained to his stepsister that he had gone five years without a raise and did the job of waitresses without receiving tips.  In another case, an employee posted that it was "spooky" to work an overnight shift at a mental health facility.  In the final case, a customer service employee posted general comments about the "tyranny" at his place of employment and complaints that he was "chewed out" for putting merchandise in the wrong place.  Some of his co-workers replied to his comments, encouraging him to "hang in there."

            The NLRB concluded in each case that there was no evidence of "concerted activity," and that the Facebook comments were nothing more than individual "gripes," and not concerted complaints between employees.  One key factor in the NLRB's determinations in these cases was that the Facebook posts did not mention terms and conditions of employment.  Another key factor in the first two cases was the fact that the co-workers were not Facebook "friends" of the complaining employee, and the comments were not shared with co-workers on Facebook.  However, even in the last case, where co-workers did comment on the complaint on Facebook, the NLRB found that the comment at issue was nothing more than an individual "gripe."