1.5 million women, consisting of current and former Wal-Mart employees, brought one of the largest class action cases against Wal-Mart for discrimination against women in pay, promotion and job assignments in violation of Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court ruled in favor of Wal-Mart against class certification.

By claiming there was a pattern of discrimination across the country, the 1.5 million women tried to sue as one class action. The court ruled, however, that the plaintiffs were unable to demonstrate "significant proof" that their claims share strong commonality and that their claims could be resolved in one class-wide stroke. 

The U.S. Supreme Court determined that the employees could not sue on a class action basis. In order to form a class action, there must be questions of fact or law common to the class. For example: the assertion of discriminatory bias on the part of the same supervisor. "That common contention, moreover, must be of such a nature that it is capable of class-wide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." In this case, the High Court ruled that a class-wide determination was not possible and therefore a class action was inappropriate. 

First, the NLRB invalidated Costco Wholesale Corp.'s policy which prohibited their employees from using social media or the Internet at work. The policy prohibited the posting of electronic statements that "damage the Company, defame any individual or damage any person's reputation". The Board reasoned that the language in the policy did not have restrictions on its application, which included "protected concerted communications". The policy violated employees' rights under Section 8 of the NLRB, which states that it is unfair for an employer to restrain, interfere, or coerce employees of their speech rights guaranteed by Section 7. Section 7 also protects employees who participate in protests, strikes, or join unions. The panel also struck down many other policies put in place by Costco which prohibited workers from sharing information about leaves of absences, worker's comp injuries, sick calls, and any private information. Unfortunately, this decision does not give employers an insight of how they can craft a social media policy in the future. Employers can expect the Board to be skeptical of and scrutinize issues that arise with social media in the workplace.

The NLRB issued a second decision involving an employees use of social media. In Knauz BMW, an employee posted two photos on his Facebook that resulted in his being fired. The employee posted a photo of a Land Rover that was driven over a small wall into a pond by a customer's 13-year old son. On the same day, the employee posted a photo of hotdogs and water that were served at a sales event with the caption "No, that's not champagne or wine, it's 8 oz. water." The employee claimed he was fired for the second posting. The NLRB found that the hotdog posting was protected under the National Labor Relations Act because the employee was concerned with the quality of the food served since it would affect his sales and commissions. However, the Land Rover photo was not protected or motivated by any concerns and was a valid reason for firing the employee.

Employers need to keep these two decisions in mind when designing social media policies. The Knauz decision shows that a Facebook posting can be a valid reason for termination, as long as it does not involve "concerted activity with other employees over the terms and conditions of employment."