One-way feedback: In-house employee surveys and the illusion of open decision making

A recent conversation at a conference confirmed my suspicions: More organizations are using online, “anonymous” surveys to get feedback from their employees. This practice appears to be especially common during strategic planning or organizational assessment stages.

Typically, an employee will get an e-mail in her inbox, inviting her to complete an online survey, often using programs such as SurveyMonkey. Topics vary widely, but usually they cover some aspect(s) of employment relations or management decision making.

Multiple choice, yes-no, agree-disagree questions will predominate, sometimes exclusively, thus sharply limiting the range of feedback.

The catch (or, catches)

So the employee may be thinking, great, they want my opinion! I’m fortunate to be working at a place that welcomes what I have to say!

But hold on. Frequently these surveys are done with an underlying agenda, usually one that seeks validation for an already favored course of action. (A telltale sign is when obvious choices or answers are not provided as response options, or when the survey is framed to exclude entire points of view.)

Call me a cynic, but here’s the usual situation:

1. The raw survey data are not shared with those who participated. Instead, a sanitized summary may be prepared and released.

2. If the survey results favor the desired outcome, they likely will be trumpeted to the high heavens.

3. If the results are ambiguous, you may not hear anything more, or those in charge will say the feedback was inconclusive and requires more thought.

4. If the results run squarely counter to the desired outcome, it’s possible that you’ll never hear another word about the survey, or reasons will be generated to disregard it (e.g., “it’s just a snapshot,” “too few respondents,” “we really shouldn’t be swayed against our better judgment”).

If organizations want genuine exchanges about planning, actions, and evaluations, they should consider making these survey results completely available, edited only for information that is defamatory or confidential — or at least guarantee that the individual tallies will be released regardless of how they come out.

Recipe for healthy employee relations: Encourage speech, nurture civility, and prohibit abuse

Okay, I’m kinda thinking out loud here, but I’ve been pondering the lines between promoting positive organizational cultures and drawing clear distinctions on when certain abusive behaviors call for sanctions.

In the U.S., the omnipresence of at-will employment — the right to hire and fire for any reason or no reason at all — and the low density of labor union membership means that most employers enjoy wide latitude to develop and implement employee relations policies and practices.

Organizations can, if they wish, clamp down on employee speech, encourage cutthroat competition, and bully workers relentlessly. Much of this will be legal, given the weaknesses of worker protections beyond employment discrimination laws.

Of course, most of us know that such practices are a recipe for disaster, or at least guarantee an underperforming, low-morale workplace. With that in mind, let’s set out a few basic parameters for something better:

1. Encourage speech — The late Peter Drucker, management guru extraordinaire, nailed it in his book Managing for the Future (1992), where he extolled the virtues of employee input and participation in problem solving. Drucker urged that “partnership with the responsible worker is the only way” to succeed in today’s knowledge and service economy.

Worker silence is a sign that many have withdrawn emotionally from the broader enterprise and are doing what they have to do to survive. An organization that encourages a robust, honest exchange of ideas and feedback is much better off than one that sends the opposite signal.

But be forewarned: Once someone is punished for stating her opinion or offering constructive criticism, trust can easily disintegrate. This has to be a “walk the talk” commitment if it is to flourish.

2. Nurture civility — Civility, fairness, and genuine inclusion should be practiced by management rather than preached. It’s all about creating a culture based on actual, observable practice and conduct.

However, imposing company civility or speech codes is problematic. The give and take of ordinary human interactions needs to make room for occasional sharp exchanges and flaring of tempers. When conduct gets out of hand, someone should step in (see below), but an everyday dust up should not be punished. In fact, it may be the canary in the coal mine that signals a deeper problem worth addressing.

3. Prohibit abuse — When speech becomes abusive, intervention is necessary. Bullying, harassment, and intimidation should be prohibited. Some aggressors can be coached or counseled; others should be disciplined or terminated. Targets of their behavior should be safeguarded and protected from retaliation for reporting the mistreatment.

This is an ultimate test of organizational ethics, especially if an aggressor happens to be a senior person. Strewn around too many workplaces are a lot of lumpy rugs, with very ugly, destructive behaviors swept under them.

Does federal labor law allow you to criticize your boss on Facebook?

Let’s suppose you go to Facebook and start posting critical comments about your boss. If he finds out, does federal labor law protect you from being fired or disciplined?

Answer: Maybe.

Sorry folks, but the lawyer in me resists, with good reason, a yes or no answer. Here’s why:

National Labor Relations Act

The National Labor Relations Act (NLRA), the main federal law governing labor unions, collective bargaining, and collective worker action, makes it an unfair labor practice to retaliate against employees who “engage in…concerted activities for the purpose of…mutual aid or protection.” Typically this provision of the law is invoked when, say, workers are attempting to form a union or banding together to address issues of pay and working conditions.

The emergence of social media sites such as Facebook has led the National Labor Relations Board (NLRB), the federal agency charged with enforcing and interpreting federal labor law, to address whether workers’ online communications about their bosses and working conditions are protected forms of concerted activity.

NLRB’s Facebook and other social media cases

Last year, the NLRB’s acting general counsel, Lafe Solomon, collected 14 relevant decisions issued by the agency’s Division of Advice and summarized them in a detailed memorandum. Here is the NLRB’s summary of that memo:

In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.

In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.

In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

You can access the full memorandum here.

Key questions

In essence, there are three important questions to ask in determining whether employee activities will be protected under this provision of the NLRA:

1. Was the activity truly concerted within the meaning of the NLRA? Activity not intended to enlist the support or participation of co-workers likely falls outside of the reach of the law.

2. Was the activity for mutual aid or benefit? Talk about wages and working conditions very likely meets this standard, while gossiping about a supervisor’s personal life probably does not.

3. Was the activity of a protected nature? Constructive criticism of wages and working conditions is probably protected, whereas filling up a website with vile epithets about a boss is not.

Many workers are not protected by the NLRA

In addition, it is vital to note that many workers are not covered by the NLRA.  Expressly excluded from coverage are supervisors, independent contractors, domestic and agricultural workers, and family member employees. In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well.

All told, some 40 percent or more of the American workforce is not protected by the NLRA, including the concerted activities provision cited above.

So, for example, if you’re a mid-level manager at a local retail store who reads this and thinks, “hey, I’ll go on Facebook and complain about the CEO,” there’s a good chance you’re not covered by the NLRA.

Possible protections for anti-bullying advocates, but ask a labor lawyer first

Based on this assessment, the NLRA may provide legal protections for workers who are raising concerns with co-workers about bullying behaviors, including exchanges on sites such as Facebook. However, this assumes the activities are truly “concerted” within the meaning of the law and that the workers are not exempt from the protections of the National Labor Relations Act.

In any event, I strongly urge workers considering federal labor law as a source of legal protection to seek the advice of a qualified labor lawyer, rather than blithely making the assumption that they are covered.

In summary

If you surf the Internet for articles about the NLRB’s social media decisions, you’ll read headlines suggesting that you now have a blanket right to criticize or complain about your boss on Facebook. I hope this article has alerted you to the hazards of making that assumption.

***

Obligatory but important disclaimer: This post is not intended as legal advice, and it is provided for informational purposes only. There are serious potential pitfalls for employees and employers alike in dealing with this body of labor law, and a summary of a few hundred words cannot replace legal advice tailored to a specific situation.

If you are in a situation that raises issues under federal labor law, consult a labor law attorney for an assessment of your rights and responsibilities.

***

Longer commentaries

The National Labor Relations Act and workplace bullying

I explored the potential application of the National Labor Relations Act to bullying situations in my first law review on workplace bullying and American employment law, David C. Yamada, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” 88 Georgetown Law Journal 475 (2000), at pages 517-521. The entire article can be downloaded without charge, here.

Employee free speech rights

For those who want to learn more about employee free speech rights in the private sector, this slightly dated but still informative law review article may be of interest: David C. Yamada, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace,” 19 Berkeley Journal of Employment and Labor Law 1 (1998), which can be downloaded without charge, here.

At-will employment and the legality of workplace bullying: A brutal combo punch

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.

In October I wrote a short post criticizing the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. In America — in contrast to many other nations — at-will is the presumptive employment relationship.

This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

Hollomon v. Keadle

When I first started researching potential legal protections against workplace bullying, I assumed that a tort claim called intentional infliction of emotional distress (IIED) would provide severely abused workers with sufficient redress.

I was in for a big surprise: Most bullying-type lawsuits that allege IIED are unsuccessful, with courts routinely dismissing claims even before they get to trial, mostly on grounds that the offending behavior was not sufficiently outrageous. (Furthermore, in many states, IIED claims against employers are precluded by workers’ compensation laws.)

My “poster case” for this reasoning came in Hollomon v. Keadle, a 1996 Arkansas Supreme Court decisions that involved a female employee, Hollomon, who worked for a male physician, Keadle, for two years before she voluntarily left the job.

Hollomon claimed that during this period of employment, “Keadle repeatedly cursed her and referred to her with offensive terms, such as ‘white nigger,’ ‘slut,’ ‘whore,’ and ‘the ignorance of Glenwood, Arkansas’.” Keadle repeatedly used profanity in front of his employees and patients, and he frequently remarked that women working outside the home were “whores and prostitutes.”

According to Hollomon, Keadle “told her that he had connections with the mob” and mentioned “that he carried a gun,” allegedly to “intimidate her and to suggest that he would have her killed if she quit or caused trouble.” Hollomon claimed that as a result of this conduct, she suffered from “stomach problems, oss of sleep, loss of self-esteem, anxiety attacks, and embarrassment.”

The Arkansas Supreme Court ruled that even if every one of Hollomon’s allegations were true, Keadle’s behaviors were not sufficiently outrageous to allow the case to proceed to trial.

Hypothetically speaking

You may be thinking, what about self-help measures? What if Hollomon had stood up to this guy and basically told him off, perhaps right there in the waiting room where he routinely humiliated her in front of patients? What if she would’ve told him, you pompous, threatening jerk, how can you treat me like this in front of your own patients? Have you no decency?

Had this occurred, the rule of at-will employment would’ve permitted Keadle to fire Hollomon immediately, on the spot, while adding a few more choice words on his own.

No free speech rights

But then you might ask, doesn’t Hollomon have a right of free speech under the First Amendment? Doesn’t she have a right to dish it right back to Keadle?

In a nutshell, no. Constitutional free-speech protections do not apply to private-sector employees. (They also are very limited for public-sector workers.) While it’s possible that anti-retaliation provisions of other laws might protect certain types of whistle blowing and reporting activities, there are no obvious possibilities under this scenario.

Indeed, had this been a larger medical practice with an HR office, the at-will rule would’ve permitted the firing of Hollomon merely for filing a complaint about Keadle. The only remotely viable avenue that I can see for Hollomon in approaching HR, looking at it from a 2011 rather than 1996 lens, is taking some of Doc Keadle’s abusive language and trying to fashion it into a sexual harassment complaint. But that could be a stretch.

Yes, there’s more

Let’s take this scenario one more step. Suppose that after being terminated following her hypothetical outburst in the waiting room, Hollomon applied for unemployment benefits.

Unfortunately, it’s possible the employer could successfully oppose her claim on grounds she was fired for misconduct. You see, misconduct is one of the standard reasons why unemployment benefits can be denied. While state courts and agencies vary widely in what they define as misconduct, in some states this may be sufficient to deny her application.

One-way boxing match

Talk about a one-two punch: The combination of at-will employment and the general legality of workplace bullying means that an employee being subjected to targeted, ongoing psychological abuse at the hands of a supervisor often has little, if any, legal protection to stand upon.

It’s cases like Hollomon v. Keadle that prompted me to draft the Healthy Workplace Bill, which provides severely bullied workers with a claim for damages, creates legal incentives for employers to minimize potential liability, and protects those who report workplace bullying from retaliation. After all, one-way boxing matches are monstrously cruel, even if they are “just” a battle of words.

***

For more about the Healthy Workplace Bill, please go here.

***

For serious study

If you really want to study the relevant inadequacies of current American employment law, several of my law review articles will either keep you up all night or help you get to sleep:

The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection – Georgetown Law Journal, 2000 (includes a thorough discussion of IIED claims for workplace bullying-type behaviors).

Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment – Comparative Labor Law & Policy Journal, 2010 (detailing ongoing research and advocacy efforts, including the Healthy Workplace Bill).

Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial WorkplaceBerkeley Journal of Employment and Labor Law, 1998 (explains why private-sector employees have few free speech rights).

Human Dignity and American Employment Law – University of Richmond Law Review, 2009 (setting out the philosophical and public policy parameters for a system of employment law that safeguards human dignity).

Occupy movement goes global: 900 cities and counting

The social protest movement that started several weeks ago with Occupy Wall Street has gone global, as Esther Addley reports for Guardian newspaper (link here):

  • 60,000 protesters in Barcelona, Spain
  • 25,000 in Santiago, Chile
  • 5,000+ “massed outside the European Central Bank” in Frankfurt, Germany
  • 4,000 in London
  • 3,000 in Auckland, New Zealand

Addley adds:

The Occupy campaign may have hoped, at its launch, to inspire similar action elsewhere, but few can have foreseen that within four weeks, more than 900 cities around the world would host co-ordinated protests directly or loosely affiliated to the Occupy cause.

Testifying on the human costs: Occupy the Boardroom

As protests mount, others are finding ways to spread the message online. Joshua Holland, writing for AlterNet (link here) reports on Occupy the Boardroom, a project that allows members of the public to share personal stories of what the economic meltdown has done to them and their families. For example, here is what one woman from North Carolina wrote to fellow Tar Heel Erskine Bowles, co-chair of the President’s national debt commission:

Like you I’m from the Tar Heel state so I thought I’d tell you my story. A couple of years ago my father died waiting for a liver transplant. It was an ugly, horrible death and left me parentless while still in my 20s. My brother and I inherited the small ranch-style house my father worked his whole life to pay off. (Our mother died during our childhoods.) I wanted to take care of my father’s money so I invested it. Six months later I had lost over half of it when the crash happened. I lost half of my father’s life savings because of the corrupt practices of Wall Street. My father worked his whole life. He was the 11th child of a sharecropping family and was sent to the cotton fields before he was ten. He completed high school but there was no money for college so he went to work at blue-collar jobs which he used to support us his whole life.

When I think of the money I lost, I think of my father’s hands. I think of his broken, scarred hands that built a home and future for me. It wasn’t just money that Wall Street stole. Futures, trust, hard work and respect — those are the things Wall Street corruption has stolen from the American People, not just money. I don’t think everyone on Wall Street is corrupt, but the system is, and I want to do my part to correct it, even if it’s just writing a letter like this. I owe my father that. Mr. Bowles, I hope you do your part too. Because of your position, you are a powerful person in our society. So I ask you, how will you use your power? What will your legacy be?

***

Watch and listen to this catchy video and song above, “We Are the 99%,” posted on YouTube.

Related posts

Economics 101: Defining terms and saving capitalism from itself

From “punk-styled kids” to airline pilots, is Occupy Wall Street the start of something big?

Post-meltdown America: An economic recovery for the wealthy

Globalization and workers 101: A quick primer

How well does your organization respond to employee feedback and criticism?

When an employee credibly criticizes an action within an organization, how does the institution typically respond?

The answer to this question is one of the most telling signs of organizational culture and integrity. Consider:

  • Are there legitimate, trustworthy mechanisms for open communication?
  • Does feedback run bottom up and laterally as well as top down?
  • Do people in authority take the time to listen?
  • Are complaints greeted dismissively, perhaps treated as digging up issues from the past — even if “the past” was only weeks or months ago?
  • Can an individual expect to be ignored, shunned, bullied, mobbed, or otherwise retaliated against for raising a concern?

Often we tend to separate how organizations respond to worker feedback generally from how they treat allegations of unethical or illegal behavior.

In reality, organizational leaders who have the confidence to solicit and listen to worker feedback generally also are likely to have the integrity to treat allegations of wrongful behavior fairly and responsively. Poor leaders, however, are more likely to fall short on both measures.

***

This is the second of three short posts this week on organizational planning, behavior, and leadership.

Getting back at a bad boss

Let’s say your boss sexually harassed a co-worker to the point where she quit her job to avoid further advances.

Is it acceptable for you to retaliate against the boss?

Charness/Levine study

Gary Charness (UC-Santa Barbara) and David Levine (UC-Berkeley) investigated that question. They conducted experiments to determine where people drew the line on retaliating against bad bosses, presenting hypothetical scenarios involving improper behavior by bosses and asking participants to indicate what types of retaliation might be acceptable.

Here’s a summary of their findings from strategy + business (link here; free registration may be necessary):

When is it okay to “get back at” a boss? It’s a thought that has occurred to many disgruntled employees, whether they have been discriminated against, believe they were passed over for promotion, or feel their work is unappreciated. According to this study, getting revenge against a supervisor is more acceptable to employees when the retaliation is an act of omission or inaction — essentially not doing something — than when it is an active attempt to cause harm.

Gender patterns

Just as we’re seeing evidence that women are more likely to use indirect means to engage in uncivil work behaviors, the Charness-Levine study also found that women were more likely to support passive forms of retaliation.

Shades of the 90s!

The Charness-Levine study echoes a spate of “bad boss” books, aimed at a popular readership, that appeared in the 1990s. For example, in The I Hate My Job Handbook: How to Deal with Hell at Work (1996), Ellen Tien & Valerie Frankel offer up (with big doses of humor) various strategies for striking back at bad bosses, including harmless pranks, anonymous pestering, selective vandalism, mockery & humiliation, and outright sabotage.

A darker take on getting back is Martin Sprouse, ed., Sabotage in the American Workplace: Anecdotes of Dissatisfaction, Mischief and Revenge (1992), which is loaded with purportedly true tales collected by the editor.

Norma Rae, meet Dilbert

In a 1998 law review article about freedom of speech at work (link here), I suggested that the appearance of these books and the popularity of the comic strip character Dilbert, the disgruntled cubicle dweller, indicated that workers were seeking “outlets for pent-up anger and frustration stemming from their work experiences.” Very few employees felt comfortable voicing their opinions and concerns openly at work, so they identified with expression that had gone underground.

Back to the future

Fifteen or twenty years later, not much has changed. Too many workers legitimately fear retaliation if they engage in responsible questioning or criticism of management decisions. And with the continued decline of the labor movement, fewer workers have the solidarity of a union to address concerns collectively.

In such a milieu, workers are more likely to engage in passive, indirect, and anonymous forms of retaliation than to risk their jobs by speaking openly and honestly. So long as too many employers choose to engage in command-and-control management practices, oppose labor unions, and retaliate against whistleblowers, this will remain the case.

***

For the full article, Gary Charness & David I. Levine, When Is Employee Retaliation Acceptable? Evidence from Quasi-Experiments, Industrial Relations: A Journal of Economy and Society (2010), go here.

Hat tip to eBossWatch for the strategy + business article.

Fired for wearing a Packer tie and the cyberbullying of Jay Cutler

Lest someone get the wrong idea, let me state my fandom up front: I have been a Chicago Bears and pro football fan since I was a kid. I maintain a mental shrine to the legendary 1985 Bears team, and I dutifully participate every year in a fantasy football league run by a college classmate.

Over the weekend, I was so worked up in anticipation of the Bears-Packers playoff matchup that I had trouble concentrating on anything else in the hours before kickoff. Alas, the Bears fell short of the mark. But there are two news stories more disturbing to me than the result of the game.

Fired for wearing a Packers tie

As reported by Yahoo! sports (link here), a fellow named John Stone was fired from his job at a Chicagoland car dealership because he committed the sin of wearing a Packers tie to work:

From Chicago’s WGNtv.com comes the unfortunately real story of a Chicago car salesman who was fired because he wore a Green Bay Packers tie to work. And making it even worse, the man wore it because his grandma was a Packers fan who had recently died and was buried two days before her beloved team’s NFC Championship game matchup with the Chicago Bears.

I don’t know all the details on Stone’s employment status, but it’s likely that he was employed on an at-will basis, meaning that he can be terminated for any reason or no reason at all.

Furthermore, to the extent that wearing a tie with a Packers logo might be considered an expression of free speech, it is highly unlikely that the law protects it. (Constitutional free speech protections do not extend into private sector workplaces. If you want a treatise-length explanation, check out my law review article, here.)

I’ll leave it to you to decide if this was, in view of the circumstances, a boneheaded and cruel decision, even if the employer was within its rights to do so.

Cyberbullied

Bears starting quarterback Jay Cutler sat out most of the second half of the game with a knee injury that turned out to be a ligament tear serious enough to knock most players out of action for 3-4 weeks.

Even before the diagnosis, that didn’t stop some of Cutler’s NFL contemporaries from tweeting during the game that he was giving up on his team and faking his injury (link here), such as these comments from Jacksonville running back Maurice Jones-Drew:

When the going gets tough……..QUIT..

All I’m saying is that he can finish the game on a hurt knee… I played the whole season on one…

Yup, it’s called cyberbullying. Just like adolescent schoolgirls defaming a classmate with online putdowns, these guys immediately took to the Internet to question Cutler’s courage and manhood. Funny how they also chose to ignore the fact that he was tough enough to take a horrific beating this season, playing behind an offensive line that offered him little protection from defensive onslaughts.

Now the truth about Cutler’s injury is known, but the damage has been done. The game wasn’t an hour old before the narrative was set: Jay Cutler folded instead of leading his team in a playoff game where everything was on the line.

I hope this young man wins a Super Bowl or two (in a Bears uniform, thank you) to give the story a better and more just ending.

The costs of suffering in silence about bad work situations

Let’s say you’re being bullied or harassed or otherwise mistreated at work. Or maybe you’ve just learned that you’re being horribly underpaid compared to the less-than-stellar fellow in the next office or cubicle.

Anger and resentment are natural responses to these situations, but is there any outlet to express your emotions at work?

Bottled up

Many people — dare I say most people — will keep it bottled up inside them.

After all, self-censorship has long been a staple of behavior for the rank-and-file worker. And during tough economic times, folks often reason (with good justification) that it’s better to internalize their bad feelings rather than express them.

Health impacts

Repressing these emotions can have grave health consequences, however.

Dr. Gabor Maté, an expert on the relationship of emotions to overall health, discussed the links between expression of emotions and immune system impairments in a recent interview with Amy Goodman published on Alternet (link here):

Women who don’t know how to express their boundaries emotionally, they suppress their boundaries immunologically, and therefore they’re more likely to develop disease. The same is true, of course, of men, so that the immune system is in constant interaction with our emotional responses.

…In another study with the immune system, medical students under the stress of examination were found to have diminished activity of their natural killer cells, these immune cells. But those students who were emotionally isolated were most likely to have diminished activity of their immune system.

In a post last year (link here), I cited a Swedish study indicating that when men repress their anger over unfair treatment at work, their risk of having a heart attack or dying of heart disease doubles.

Bringing it home

Unfortunately, what is bottled up at work sometimes bubbles over at home.

Contrary to common advice, it’s not always easy to “leave it at the office.”  How much pent up frustration stored up during the workday is dished out toward family members and friends? And how often does displaced anger directed toward spouses and kids reach abusive levels?

One-way boxing match

The state of employment law promotes remaining silent, at least for the vast majority of workers who are not protected by collective bargaining agreements. When I first started researching legal protections against workplace bullying and restrictions on employee free speech, I realized very quickly that when it comes to expression at work, it’s a one-way boxing match.

In other words, a supervisor can yell and scream at an underling and usually get away with it, but if the underling acts in the same way, she can be disciplined or fired and the law often will say it’s legal.

Bottom line

We also know how this affects the one thing even bad companies embrace, the holy bottom line. When employees feel mistreated, they are less loyal and productive and more likely to bolt once anything resembling a better job comes along. Stress-related absenteeism and higher health care costs also are a part of the mix.

Public health problem

Workplace bullying, harassment, and other forms of abuse are more than “just” employment problems. We need to teach everyone that these are public health problems as well.

Here in the U.S. (and in many other countries as well), the ways in which we address and resolve differences at work are simply broken. Top-down, command & control management structures produce these situations like an assembly line, and employment laws and dispute resolution procedures do not encourage doing anything differently. When stress inducing, anger producing mistreatment at work continues to be written off as part of the everyday cost of having a job, the negative public health impacts will ripple out over and again.

How does the NLRB’s Facebook firing complaint relate to the struggle against workplace bullying?

Rapidly making its way around the world of employment relations is the National Labor Relations Board’s (NLRB) decision to file a complaint against an employer for firing an employee for posting critical comments about her supervisor on Facebook. As reported by Steven Greenhouse for the New York Times (link here):

In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page.

This is the first case in which the labor board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.

The case will be heard early next year.

Legal background

Here’s a quick primer on the legal background behind the case: The National Labor Relations Act, the main federal law governing labor unions, collective bargaining, and collective worker action, protects workers who “engage in…concerted activities for the purpose of…mutual aid or protection.” Typically this provision of the law is invoked when workers are organizing support for unions or taking part in union activities, but it also applies to many non-union work situations as well.

The NLRB is the federal agency charged with enforcing federal labor law. Its complaint in the Facebook case is based on the concerted activities provision of federal labor law. In essence, the Board believes that the worker was engaging in protected concerted activity by posting her concerns on Facebook for the purpose of engaging fellow employees in the discussion.

Not a general free speech protection

Even if the Board prevails, this will not mean that workers have a general free speech right to criticize their employers, supervisors, or co-workers. It will extend only to those situations where workers covered by the National Labor Relations Act can establish that their speech was a form of protected concerted activity — in other words, non-defamatory exchanges with co-workers for the purpose of mutual aid or protection.

Many workers are not protected by the NLRA

In addition, it is vital to note that many workers are not protected by the NLRA.  Expressly excluded from coverage are supervisors, independent contractors, domestic and agricultural workers, and family member employees.  In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well. All told, some 40 percent or more of the American workforce is not protected by the NLRA, including the concerted activities provision cited above.

Possible protections for anti-bullying advocates, but ask a labor lawyer first

Thus, the National Labor Relations Act may provide potential legal protections for workers who are raising concerns with co-workers about bullying behaviors, including exchanges via sites such as Facebook. However, this assumes the activities are truly “concerted” within the meaning of the law and that the workers are not exempt from the protections of the National Labor Relations Act.

In any event, I strongly urge workers considering federal labor law as a source of legal protection to seek the advice of a qualified labor lawyer, rather than blithely making the assumption that they are covered.

Bottom Line

I fear that many workers will grasp only the headlines about this case, mistakenly assume that they have a carte blanche legal right to criticize their bosses online or elsewhere, and pay for it with their jobs. I hope the commentary above will help to clarify what this case means at this juncture.

***

Background articles

The National Labor Relations Act and workplace bullying

I explored the potential application of the National Labor Relations Act to bullying situations in my first law review on workplace bullying and American employment law, David C. Yamada, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” 88 Georgetown Law Journal 475 (2000), at pages 517-521. The entire article can be downloaded without charge, here.

Employee free speech rights

For those who want to learn more about employee free speech rights in the private sector, this slightly dated but still informative law review article may be of interest: David C. Yamada, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace,” 19 Berkeley Journal of Employment and Labor Law 1 (1998), which can be downloaded without charge, here.

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Addendum: Employment lawyer Jon Hyman, host of the always informative Ohio Employer’s Law Blog, rounds up the sea of commentary on this pending case here.

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The legal commentary in this post and this blog generally is for educational purposes only and cannot substitute for the advice of an attorney.

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Feb. 2011 update — The parties involved in this case announced a settlement of their dispute on Feb. 7. As reported by Steven Musil for CNET (link here):

A Connecticut ambulance company that fired an employee after she criticized her boss on Facebook agreed today to settle a complaint brought by the National Labor Relations Board.

The NLRB sued American Medical Response of Connecticut on October 27, 2010, claiming the employee, Dawnmarie Souza, was illegally fired and denied union representation after she posted negative comments about her supervisor to her Facebook page. According to copies of Souza’s Facebook posts obtained by CNET, she called her supervisor a “dick” in one and “a scumbag” in another.

Although the case was getting a lot of media and public attention, it’s far from sure that the NLRB’s decision would’ve led to any groundbreaking changes in the law. Indeed, I would stick with my warnings, shared above, that this case does not mean that workers have unfettered rights to post critical comments about their bosses or co-workers on social media sites or the Internet generally.

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