Social media is everywhere today; from Facebook to Twitter to LinkedIn, it would be almost impossible for an employer not to have someone working for them that has some form of social media presence. While you might be able to keep an employee from updating their Facebook status from the office, can you do anything about what they say or do about you or your company on their social media in their own time? Indeed, can you fire someone for their social media complaints about work?
The National Labor Relations Board (NLRB) receives thousands of complaints each year from employees terminated for what they say and post on their social networks. In response, the NLRB has issued a report based on its many case in an effort to illustrate under which circumstances a firing was justified and when it was not.
To put the NLRB’s report in the proper context, it is important to remember a few things. Some states are “right to work” states, in which an employer can fire an employee for any reason or no reason at all, provided that the firing is not predicated on the employee being a member of a protected class (i.e., one cannot be fired solely based on their race, ethnicity, age, gender, political affiliation, familial status, etc.) or done in retaliation for whistleblowing (such as in response to a report of sexual harassment or for notifying the government of illegal activities). Also, one must remember that the U.S. Constitution’s First Amendment right to free speech only applies to a person’s interaction with the government, and private employers can fire someone based on things they say without any concern about violating someone’s civil rights. However, all private employers must respect the right of workers to “protected concerted activity,” the foundation for the formation of American labor unions. This is true even in non-union states and even for non-union employees.
In general, pursuant to the report, employees can discuss things related to their criticism of an employer, their working conditions, and disagreements with an employer’s decisions or policies in social media as part of their right to “protected concerted activity.” But the word “discuss” is the key. Workers can vocalize, either in person or via social media, their sentiments and concerns regarding an employer without fear of losing their job thanks to this right, but only if they are discussing these concerns with other workers. If an employee simply starts complaining on social media about their employer and/or how much they hate their job solely for the purpose of venting their frustrations without any effort to engage other employees, then it is not a “discussion” and not protected as “protected concerted activity.”
It is a pretty fine distinction, but essentially, it comes down to how many people are involved. If a group of workers are collectively complaining about working conditions, it is concerted. If it is just one person vocalizing their own personal frustrations, it is not concerted, it is just complaining, and a firing is legal.
For example, imagine a retail store where the boss is a real tyrant, known for yelling at and belittling employees on the sales floor in front of others. A group of employees discuss their working conditions and begin sharing comments back and forth on their social media pages, possibly even recounting the boss’s antics or posting photos or videos of him in action. Even though that material is publicly visible and could harm the employer’s reputation, the employer could get into trouble for firing those employees, because they acted together (i.e., in concert) making the discussion a “protected concerted activity.”
On the other hand, imagine the same retail store, but only one employee complains about the boss on social media. Nobody else joins the discussion or, at best, only leave comments expressing their sympathies. In that case, there is no collective effort because it is only one employee complaining, not several acting in concert, so there is no “protected concerted activity.” As a result, any firing that resulted would be legal (at least, as far as this right is concerned).
Obviously, the question of “protected concerted activity” rights is a fine line, so if you are either an employer considering letting someone go for their social media behavior or an employee who believes you have been wrongfully terminated, you should contact an attorney to assist you. You may also wish to consult with the National Labor Relations Board for guidance on this issue.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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