An employee on Facebook slams you or one of your supervisors. What are your options for stopping the employee?
The National Labor Relations Board has weighed in – strongly – on instances when employers tried to fire or discipline workers who made critical remarks on Facebook and other social media.
In at least three real-life instances, the NLRB found in favor of the employees and ruled that the terminations were illegal:
“I deserved the promotion.” An employee went on Facebook to complain that she deserved a promotion that went to another employee “who did not do any work.” Other employees joined in the discussion and similarly criticized the employee who received the promotion. The comments mushroomed into general complaints about a lack of pay raises or appreciation, peppered with threats of mass resignation. As a consequence of the comments, the employer fired two of the employees and disciplined two others.
The NLRB ruled the fired employees had to be reinstated and the discipline rescinded because the comments were “protected concerted activity” and “a call to group action.”
“I’m done with being a good employee.” After a transfer to a less-desirable and lower-paying position, an angry employee made a profane post on Facebook, threatening to slack off and condemning her employer. She was joined by other employees, some of whom supported her and suggested that the company be hit with a class-action lawsuit. After management discovered the comments (through a supervisor who was a Facebook “friend”), the complaining employee was fired.
The NLRB ruled the termination unlawful because the discussion “clearly involved complaints about working conditions and the employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees.” Translation: Threats to sue over treatment are protected.
“The boss is an idiot.” After some turmoil over required overtime work and general working conditions, a group of manufacturing employees took their complaints to Facebook and made comments that were particularly critical of an operations manager, whom they blamed for most of the problems at work. The complaining employees were disciplined for the posts.
The NLRB ruled the posts were protected from retaliation because “it is well established that employee complaints and criticism about a supervisor’s attitude and performance may be protected.” Plus, the posts deserved additional protection because they “arose as part of an employee discussion regarding shared concerns about terms and conditions of employment.”
It appears the NLRB generally will rule in favor of employees who make routine complaints about working conditions or their bosses or who even threaten legal action because of some perceived mistreatment. What isn’t protected – yet: threats of violence or sabotage or any other illegal action against an employer.