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.
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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.
Minding the Workplace 
For all interested in what I like to call the issue of “sass discrimination” in the workplace, I post here the link to a must-hear episode of the radio program “This American Life”. You may have heard of Adrian Schoolcraft, but wait until you hear the actual tapes he made that partially document his ordeal, tapes that were the basis of his successful multimillion-dollar lawsuit against his former employer, the New York City Police Department. His story will make your blood run cold. This episode of this fabulous NPR program is called “Right to Remain Silent” and features separate segments about two people who chose not to be silent, Joe Lipari and Adrian Schoolcraft. The first segment, though not about the workplace, is still worth listening to, especially as an intro to the second segment about Schoolcraft.
Here’s the link:
http://www.thisamericanlife.org/radio-archives/episode/414/right-to-remain-silent
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Separation of personal and employment states is a no brainer. That person should have never been fired for that. But, whoever posts something like that on facebook has very poor judgement because it would be expected that bullying will be far more likely to occur again that person.
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