You may have heard about the case the National Labor Relations Board (NLRB) brought against a company for disciplining an employee based on insults she posted on her Facebook page about her boss. As a result of the publicity this case got, lots of employees are posting nasty comments about their bosses on Facebook, tweeting about how awful management is, and then wondering why the heck they were fired.
But please, please don't post anything in any form of social media you don't want on the front page of the company newsletter.
Don't get fired over something stupid. Here's what you need to know before you criticize your boss:
The "concerted activity" provision of the National Labor Relations Act (NLRA) applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don't like to talk about it because it covers anything employees do for mutual aid or protection. Here's what it says: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
If you're complaining about working conditions—not just your own but also those of your coworkers—you're possibly protected from retaliation under NLRA. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.
Over-Broad Policies: NLRB says policies prohibiting all disparaging comments when discussing the company, supervisors, or coworkers are illegal. Similarly, policies that prohibit employees from depicting the company in any way in social media may also violate the NLRA. However, companies may (and probably should) have social media policies that define what employees will be disciplined for when they use social media.
If you're just venting without encouraging coworkers to weigh in, you might not be protected. If, for instance, you never friend coworkers on Facebook, then you rant about work, you aren't engaging in "concerted activity" that's protected. If you post, thinking it will generate a discussion, and it doesn't, you may or may not be protected. So tweeting that your boss is a jerk when your coworkers don't follow you or comment is probably not protected.
Cases where employee comments were protected include an employee who was fired for criticizing unpaid, two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistle-blower laws, by the way); employees who were terminated for sending a letter protesting working conditions and saying that they were being told to spend large amounts of time on the company president's pet project; and an employee who got a written warning for objecting to a supervisor's lecture about radio headset volume. So yes, protesting poor working conditions may well be protected under NLRA.
Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss's reputation, damage the company, or anything but to improve working conditions, then you're probably going to be unemployed.
Your comments must be part of "concerted activity," which is defined as "being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself." If you go it alone, you do it at your peril.
If you are fired for suspicion of being involved in discussions with coworker or activity protesting or objecting to workplace conditions, you are still protected even if you weren't actually involved.
There are also lots of exclusions, so many employees aren't protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, and managerial and confidential employees aren't protected. If you're high enough up, you can't gripe and get away with it.
If you think you were fired or disciplined for criticizing your boss, and you're pretty sure you are protected, don't sit on your rights. You only have six months to file a complaint with the NLRB. They will investigate to determine whether or not there's cause for your charge. They may interview you, at work if you're still there. You can have a union rep or coworker present. A report then goes to the regional director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about one-third of cases go forward. If you're dismissed, you can appeal to the general counsel's office.
If the regional director finds reasonable cause, then they'll first try to settle it. About 90 percent of the cases settle at this stage. If it doesn't settle, it goes before an administrative law judge, and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer's role is limited, because the case is not yours, but the NLRB's.
If you win, you can get reinstatement, back pay, and interest. You cannot get emotional distress. The statute doesn't provide for an award of attorney's fees, but sometimes they can be awarded as a "sanction." The judge can also order the employer cease and desist their illegal practices.
I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.
The First Amendment doesn't protect you unless you work for the government (or unless somehow your company works with government to restrict your free speech, which is unlikely to apply to your situation). There's no free speech in corporate America.
Donna Ballman has been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, non-compete agreements, and employment law issues, in Ft. Lauderdale, Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I'm Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs. Follow her @EmployeeAtty.
[Image: Flickr user Mixy Lorenzo]