You’ve probably heard about the case the National Labor Relations Board brought against a company for disciplining an employee based on insults she posted on her Facebook page about her boss. Well, it settled. So I expect to hear about a bunch of employees posting nasty comments about their bosses on Facebook, tweeting about how awful management is, and then wondering why the heck they were fired.
Please, please don’t post anything in social media you don’t want on the front page of the company newsletter. Don’t get yourself fired over something stupid.
The National Labor Relations Act and Concerted Activity
In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), is where the NLRB claimed a company violated the “concerted activity” provision of the National Labor Relations Act (NLRA). I personally like this provision a lot because it applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don’t like to talk about it because it covers anything employees do for mutual aid or protection.
Here’s what it says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
If you’re complaining about working conditions, not just your own but also those of your coworkers, you’re possibly protected from retaliation under the National Labor Relations Act. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.
The Facebook Case and the Facts
The NLRB’s settlement of this case doesn’t mean that you’re necessarily protected. The facts of the case were not unusual, but they might not apply to you.
The company had a policy that prohibited: “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” It also prohibited employees from depicting the company in any way in social media. That’s pretty broad. Part of the NLRB’s beef was that the restriction was too broad. The settlement was, in part, that the company would “revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”
Granted, the employee’s comments were pretty outrageous: "looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***." The company said she was rude and unprofessional, and violated their internet policy. Her coworkers then weighed in with comments supporting her and with further negative comments about the supervisor.
A big reason the NLRB found her activities protected was the fact that it resulted in comments from coworkers. If you post something just to vent and it doesn’t result in a discussion with coworkers, you’re probably not in the same boat. So tweeting that your boss is a jerk when your coworkers don’t follow you or comment is probably not going to be treated the same way.
Protesting Working Conditions Might Be Protected
While this wasn’t the first case involving protected comments, it was the first involving social media. Other cases where employee comments about working conditions were protected are where an employee was fired for criticizing unpaid two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistleblower laws, by the way); employees terminated for sending a letter protesting working conditions and that they were being told to spend large amounts of time on the company president’s pet project; and an employee who got a written warning for objecting to a supervisor’s lecture about radio headset volume.
So yes, protesting poor working conditions may well be protected under the National Labor Relations Act.
Why You Should Keep Your Mouth Shut
I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.
Intention is key: Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss’s reputation, damage the company, or anything but to improve working conditions, then you’re probably going to have to file for unemployment.
No solo act: Your comments have to be part of “concerted activity,” which is defined as “being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself.” If you go it alone, you do it at your peril.
You might not be protected: There are also lots of exclusions, so many employees aren’t protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, managerial and confidential employees aren’t protected. If you’re high enough up, you can’t gripe and get away with it.
The company policy might be okay: The NLRB has found other provisions in employer policies didn’t violate the Act. For instance, in one case language that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” was allowed.
Bullying and harassment is legal: Let’s not forget that there’s still not a single state in the U.S. that has passed a law against workplace bullying. My post with further information about harassment and bullying is here. Bottom line is that a bully boss still has the power to discipline you, decide whether you get raises or promotions, and make your life miserable. Why tick him or her off if you aren’t protected from retaliation?
No free speech at work: The First Amendment doesn’t protect you unless you work for the government. There’s no free speech in corporate America. My post about what you can and should complain about at work and still be protected is here.
But I’m Sure My Company Did Something Illegal
So you think you were fired or disciplined for criticizing your boss, and you’re pretty sure you are protected. Don’t sit on your rights. You only have 6 months to file a complaint with the NLRB.
They will investigate to determine whether or not there’s cause for your charge. They may interview you, at work if you’re still there. You can have a union rep or coworker present with you. A report then goes to the Regional Director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about 1/3 go forward.
If you’re dismissed, you can appeal to the General Counsel’s office.
If the Regional Director finds reasonable cause, then they’ll first try to settle it. About 90% of the cases settle at this stage. If it doesn’t settle, it goes before an Administrative Law Judge and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer’s role is limited since the case is not yours but the NLRB’s.
If you win, you can get reinstatement, back pay and interest. You cannot get emotional distress or attorney’s fees. The judge can also order that the employer cease and desist their illegal practices.
When in doubt, contact an employment lawyer in your state to get more information about your rights.
Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.