We all spend way more time than we should checking our Facebook, Twitter, and other social media feeds. But social media is the new water cooler, the place where people gather to talk about their days, complain about their bosses, and so forth. The problem is, the virtual water cooler of Facebook is open and accessible to the entire world, including that boss you just criticized in a post.
NLRB Finds Cursing out Supervisor Part of “Concerted” Pro-Union Activity
The National Labor Relations Board (NLRB) has said that an employer cannot fire or otherwise retaliate against employees who use social media to talk among themselves about their working conditions. Federal labor law protects the right of all employees to engage in “protected concerted activity.” Traditionally this means the right to unionize, but even non-union workers have certain rights. According to the NLRB, posts you make to Facebook and other social media sites may be considered protected concerted activity if they address “work-related issues” and share information about “pay, benefits, and working conditions.”
The NLRB has even gone so far as to find posts that directly and harshly criticize one's boss may be protected activity. A federal appeals court in New York recently backed the NLRB on this issue. The underlying case involved a man who was fired from his job at a catering company in New York City.
The catering company's employees were in the process of holding an election to decide whether to unionize. Two days before the election, according to the NLRB, a supervisor gave direction to the employee in a “harsh tone.” This angered the employee, who saw this as “the latest instance of management's continuing disrespect for employees.” About an hour later, the employee posted a message to his Facebook page in which he referred to the supervisor (and members of his family) using several expletives. After management learned of the Facebook post, the employee was fired.
The NLRB ultimately determined that the employee's post was protected activity and therefore his firing was unlawful. As the Second Circuit noted in its decision upholding the NLRB's decision, despite the “vulgar attacks” on the supervisor and his family, the Facebook post also contained a clear message to vote in favor of unionizing. Since several of the employee's co-workers followed him on Facebook, this was enough to bring it within the definition of “concerted” activity.
Additionally, the Second Circuit noted the employer “consistently tolerated profanity among its workers.” Indeed, there was “no evidence” the employer had ever sanctioned, much less fired, any other worker for using profanity, even when directed at co-workers. The employee also testified that he mistakenly assumed his Facebook account was private, and that he deleted the vulgar post when he learned otherwise. Taking all of these facts into account, the NLRB and the Second Circuit said the employee's actions were not “so egregious as to lose the protection of the NLRA.”
Have You Been the Victim of Workplace Discrimination?
The lesson here is not that you should curse out your boss on Facebook. Rather, it is that an employer cannot single out employees for retaliation based on work-related criticism that may be posted to social media. If you have been the victim of workplace discrimination based on your online posts, you should speak with an experienced New York employment lawyer who can advise you of your rights under state and federal law. Contact the Law Offices of Mahir S. Nisar if you need to speak with an attorney today.