Attacking your boss on Facebook now a protected activity

A National Labor Relations Board report released last week attempts to explain the changing legal standards for social media use in the workplace. Written by the NLRB’s general counsel, Lafe E. Solomon, the document provides several case studies to illuminate how much smack employees can talk on Facebook while remaining legally protected.

In short, it’s a lot. Still, not quite everything goes. Some workers who criticize the workplace on Facebook and Twitter may be protected from firing or discipline because they are engaging in “protected concerted activity.” In other cases, it was justifiable to fire or discipline an employee whose Facebook attacks were “entirely personal,” like the guy who called his boss a “super mega puta.”

The report discusses the outcome of investigations into 14 cases involving social media by the agency’s Division of Advice. In four cases, the NLRB found the workers were protected under Section 7 of the National Labor Relations Act because they were discussing terms and conditions of employment with fellow employees.

In one case the NLRB sided with a luxury car salesman fired for posting photos of a sales event in which hot dogs were served, cheap food he deemed to be conveying the wrong message to potential clients. His introduction to the photos remarked that he was happy to see that the employer had gone all out for the party. The NLRB said the salesman was vocalizing the concerns of his co-workers, whose salaries were based entirely on commissions.

In another case, the NLRB sided with two restaurant employees fired after reacting online to a critical Facebook post by a former employee. The ex-worker criticized her onetime employer for failing to withhold enough money for state taxes. One fired employee pressed “like.” The other said she also owed money, and opined that one of the restaurant’s owners was “such an asshole.” The report noted that the issue had previously been raised with management, and the online discussion concerned future group activity by the employees.

But the NLRB sided with a retail store that disciplined an employee who complained on Facebook about “tyranny” at work and criticized an assistant manager with a denigrating term. The posts were about an individual gripe rather than concerted action, the NLRB said.

For employers hoping to avoid federal scrutiny, the report offers several lessons. Generally, you can’t discipline employees who discuss workplace responsibilities and performance together online — even if the employees swear, use sarcasm or include insults. And you can’t discipline an employee for clicking “like” on Facebook.

Section 7 covers most private sector employees and applies even if the workplace is not unionized. A word of caution: NLRB’s position on social media has not been tested in the courts, and the legal issues are still developing.

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