Is Bashing your Boss on Facebook Protected Activity?

 The cross-street of social media and the workplace continues to complicate the relationship between employers and workers.  This week the government has filed a fascinating case under the National Labor Relations Act ("NLRA") alleging that an employer illegally terminated an employee for posting negative comments about her supervisor on the Facebook social media site.

 

To my knowledge, this is the first time the NLRB (or any other agency for that matter) has taken such a position in court.  The Board's position is that an employee's activity of discussing the workplace online is protected "concerted" activity under the NLRA.  Generally, the NLRA forbids employers from retaliating against employees (whether unionized or not) for discussing working conditions.  The Board has taken the position that it makes no difference whether the discussion is around the traditional water cooler or around the new digital water cooler that is social media - protected activity is protected activity.  

 

The NLRB's position would seem to call into questions many companies' current social media policies, which forbid making negative postings about the employer on the internet. Arguably such policies are now illegal under the NLRB's interpretation of applicable law.  And remember -- this applies to all employers, whether unionized or not.

 

This will be an interesting case to watch.  An administrative law judge is scheduled to begin hearing the case on Jan. 25.  The material I have read about this case indicates that the Facebook post was responded to by several co-workers who were the employee's Facebook "friends".  I think this likely bolsters her position considerably.  A much more difficult question would be a situation in which an employee makes such a post but has no co-workers as Facebook friends or has co-workers as friends but cannot establish that any of them saw or were otherwise aware of the posting.

 

Source: New York Times Article