Last month, a federal Appeals Court once again ruled in favor of an employee who fired off a string of obscenities aimed at his employer on Facebook.
The Court found that the employee’s termination was wrongful because his rant constituted “concerted activity” under the National Labor Relations Act. This has been a murky and changing area of law, but the Court’s latest decision sheds some light on it.
It has always been the case that griping about low pay, bad hours, or mean managers in the physical presence of a co-worker would qualify as "concerted activity" and be protected by the NLRA. (Reminder: the NLRA protects employees in both unionized and non-unionized environments.) However, the extent to which these protections apply to online or social media has been a moving legal target.
Because of the ambiguity, and the overall employee-friendliness of the NLRB over the last several years, we have been advising clients to be extremely careful about disciplining employees for anything work-related they say on social media.
The Court hinged its decision on the following:
- The subject matter of the post explicitly protested mistreatment by management, which the employee felt he had experienced just before posting, and called for unionization. (Do not assume discussion of unions is essential for protection.)
- The company regularly tolerated profanity in the workplace, and management used similarly foul language when speaking to employees. No one had ever been sanctioned, much less fired, for profanity.
- The location of the employee’s comments – an online forum not in the presence of customers, where he was “friends” with co-workers – is a key medium of communication among employees and a now-common tool for organization.
Employers may find it useful to consider the same issues when determining how, or if, to respond to an employee post. Was the post a response to events or treatment in the workplace? Was the language and tone of the post in line with the language and tone used by employees and managers at work? Was it likely that the post would reach other employees?
Perhaps most importantly, the third consideration of the Court – that social media is now a common tool for workplace organizing – drives home the point that posts like this are inevitable. Employers should expect that social media spaces will receive the same level of protection as conversations around the water cooler, union leaflets, and speech on the picket line.
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