According to a Wall Street Journal article by Melanie Trottman today, the National Labor Relations Board (NLRB) is weighing in on whether employees who use social media to post negative comments about their workplaces are protected against reprisals by their employers:
Workers fired or disciplined for bad-mouthing employers on social-networking sites are fighting back using a decades-old labor law—a new front in the murky battle over what workers can do and say online.
Since the rise of Facebook and Twitter, companies believed they had the right to fire employees who posted complaints or hostile or rude comments online about their employers.But in recent months, workers have sought to solve their very modern employment predicament by using the law that kick-started the U.S. labor movement: the National Labor Relations Act of 1935. The law gives private-sector employees certain rights to complain about pay, safety and other working conditions. It doesn’t protect simple griping.
More than 100 employers, including a saloon, a BMW dealership and Wal-Mart Stores Inc., have been accused by workers over the last 12 months of improper activity related to social-media practices or policies, according to the National Labor Relations Board, a federal agency that enforces the law and decides whether employees’ complaints have merit.
NLRB lawyers in Washington have decided that about half of the complaints they have reviewed thus far have sufficient merit for the agency to intervene, generally in the form of a civil complaint filed against employers on behalf of employees. Complaints are heard by an NLRB judge, who can order a remedy.
The NLRB actions, most of which involve nonunion employees, represent a new arena in which the agency is asserting itself in the workplace. It already is on the hot seat with Republicans and business groups, who say it has favored unions over employers under President Barack Obama’s watch, notably when it challenged Boeing Co.’s decision to install a nonunion production line in South Carolina.
Rafael Gomez of law firm Lo Tempio & Brown in Buffalo, N.Y., who is representing a nonprofit group in an NLRB case involving Facebook postings, said his case and others suggest the agency is “seeking to assert itself in a nonunion workplace.”
In a separate case, Dawnmarie Souza, a paramedic for American Medical Response of Connecticut Inc., was fired after calling her supervisor a “scumbag” on Facebook, from her home computer. She was unhappy the supervisor had questioned her about a customer complaint, according to the NLRB’s investigation.
The NLRB’s complaint on Ms. Souza’s behalf—the agency’s first ever involving a firing related to social media—came after NLRB lawyers in Washington concluded the firing was illegal because the postings were made during an online discussion among employees about supervisory action, which is considered “protected concerted activity” under the law.
The comments were provoked by what the NLRB deemed the supervisor’s unlawful denial of union representation during a workplace meeting about the customer complaint. The case was settled in February before it could advance to an NLRB administrative judge.
Whatever you write on Facebook or elsewhere, just make sure it’s the truth, and that you are prepared to defend it, perhaps in court, with or without the NLRB’s assistance.