Sweeping Employee Training and Management

Can You Safely Fire an Employee for Job Complaints Posted on Facebook and Similar?

Although venting workplace frustrations on Facebook is perhaps a dubious practice, a recent ruling by the NLRB has set a precedent for those wishing to express their problems via social media.

by Ranger Kidwell-Ross

You don't have to spend much time on social media sites in order to find someone complaining about their boss or coworkers. Sometimes, they may have forgotten they had made them a 'friend' on the site sometime prevously.

The National Labor Relations Board has ruled in the favor of five New York workers that were fired because of comments they made on Facebook. The judge in the case decided that the social media communications of the workers were protected by the National Labor Relations Act, which allows for employees to freely discuss the terms and conditions of their employment.

The employees in question work for Hispanics United of Buffalo, a non-profit that provides social services for the poor in the area. They coordinate housing, deal with domestic violence victims and operate a food pantry.

The issue started in October 2010 when an employee at Hispanics United of Buffalo, which provides social services to low-income clients, posted on her Facebook page comments that a co-worker had made about other employees, saying they were not doing enough to help the organization's clients. The employee who put up the post then solicited feedback from other co-workers, according to the labor board.

Some of the postings that followed contained profanity, but they mostly criticized working conditions, including workload and staffing issues. Upon seeing the postings, the co-worker who had made the criticism said she considered the Facebook conversation to be "cyber-bullying" and "harassing behavior," a board report said.

The message was posted from the employee's home computer, on her own time. In the end, the employee who posted the comments and four workers who responded were all fired. Hispanics United claimed the Facebook conversation constituted harassment of the employee whose criticisms were noted in the original post, the NLRB said.

The official NLRB ruling states that employees' criticisms of another employee's performance are protected by law. Specifically, the ruling states:

"Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.

"That would seem particularly true in this case, where at least some of the discriminatees had an expectation that LC might take her criticisms to management. By terminating the five discriminatees for discussing LC's criticisms of HUB employees' work, Respondent violated Section 8(a)(1)"

Section 7 of the National Labor Relations Act protects the "concerted activities" of workers who engage in discussions about the terms and conditions of their employment. The rule stems from union organizing, but now it's increasingly being applied to protect workers talking via social media, said David Scher, a principal with the Employment Law Group law firm in the District of Columbia.

The Judge ordered HUB to rehire the five employees and to give them back pay, ruling that their original termination had been unlawful.

Scher says workers' criticisms of their employers on social networking sites are generally protected and employers may be violating the law by punishing workers for such statements. "A knee-jerk reaction by an employer to a comment an employee makes in social media could create liability for the employer," he said.

The labor board found in the Hispanics United case that the Facebook discussion was "a textbook example of concerted activity, even though it transpired on a social network platform."

But likewise, Scher said, employees shouldn't think they can just post anything about their job situation. Workers need to make sure that they're not making comments that are outside the scope of the law. Divulging confidential information or defaming a manager could lead to termination.

"If I go online and say, 'My boss is a jerk,' that probably is not protected," he said. "But if you say, 'My boss is making my working conditions unbearable,' that is probably protected."

It's unclear just how precedent-setting this decision really is when it comes to free speech and social media. But one thing is for sure – there is now an official precedent stating that employees can discuss their working conditions on Facebook and other social media sites.

That still doesn't mean that airing company gripes on social media is a good idea. Co-workers and employers that take offense at the comments can, of course, find ways other than termination to enact retribution for negative social media posts.

Ranger Kidwell-Ross is a graduate economist and editor of WorldSweeper.com. He may be reached via this email link or by calling (866) 635-2205.

This article was added to WorldSweeper.com in October of 2011.

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