Protected or Not, Some Online Postings May Spell “Unemployment”

Posted October 17, 2011 in Uncategorized by Keith Ecker

If you’ve heard the phrase, “loose lips sink ships,” it’s about betraying secret information to the enemy. Today, it could apply to losing your job – even temporarily. Posting comments on the web and now on social media sites has landed more than a few people in trouble with their sometimes former employers.

Social networking sites such as Facebook and Twitter provide users with a simple and fast means of communication that can reach an audience of hundreds, even thousands, with just the click of a mouse. But with this great power comes great responsibility, and recent court cases highlight how, within the employment context, there’s a very thin line between proper use and misuse of these technologies.

     
  • It’s easy to post a comment; not so easy to live with some of the consequences
  • Depending on several factors, some remarks are a "protected concerted activity"
  • Individual gripes aren’t protected speech

 

Courtney K. Warmington, an advisory director at the Oklahoma firm of Crowe & Dunlevy, discussed the nuances of the laws regarding employee use of social media during a recent Webinar. Although there’s still no consensus on what is and isn’t protected internet speech, she provided several guidelines to help determine whether an employee’s outspokenness could result in termination.

Employees Have a Right to Engage in Protected Concerted Activity

Courtney Warmington

The National Labor Relations Board (NLRB) is the government agency that largely handles issues related to labor unions. Recently, the NLRB has begun to hear a number of cases dealing with non-union workers’ use of social media.

"This is a very active time for the NLRB," Warmington said. "They issued between 20 and 30 opinions in the last year just dealing with social networking in the workplace."

Employees are turning to the National Labor Relations Act (NLRA) to seek protection in incidents where they feel wrongly disciplined for speaking out against their employers. The NLRA is a federal law that legislates how private-sector employers may interact with workers who create labor unions. However, in some instances, the NLRA applies to non-union workplaces as well.

"The key reason the NLRA applies to all employers is that employees have the right to attempt to form a union where there isn’t currently one," Warmington said. "So the NLRA is going to provide employees with some protections before that happens. Specifically, the act protects the rights of employees to engage in protected concerted activity."

What Is a “Protected Concerted Activity?

Protected concerted activities are when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity under certain circumstances as well. Examples of protected concerted activity include:

  • Two or more employees addressing their employer about improving their pay
  • Two or more employees discussing other work-related issues, such as safety concerns
  • An employee speaking to an employer on behalf of one or more coworkers about improving workplace conditions

This protected concerted activity can take many forms and appear in many different forums, including Facebook. In some extreme cases, this kind of protected activity has even taken the form of name calling and cursing.

Lousy Hotdogs Illustrate NLRA Protections

One recent case illustrating this point concerned a luxury car dealership and its sales staff. The owner of the dealership decided to stock a daylong sale with low-quality refreshments, including hot dogs and cookies. The salespeople felt the quality of the refreshments didn’t fit with the type of clientele they wished to attract and that the promotion would hurt their commissions. These complaints were voiced to their managers, but were ignored.

On the day of the event, one salesperson took pictures of the food and drink being served, posted these pictures to Facebook and included snide comments about the quality of the food and its impression on the clientele. The company terminated the employee.

"Although the employee was the only one commenting on Facebook, he was vocalizing the sentiment of co-workers and continuing the conversation that co-workers had started at the sales meeting prior to the event," Warmington said. "So the complaint or gripe can be about something as seemingly unimportant as what food the company is providing as long as it relates to something that can be a term or condition of employment"

Not All Speech Is Protected

However, just because the NLRA provides employees with some protections when it comes to voicing their grievances online, it doesn’t give them free reign to say whatever they wish without fear of repercussions.

Warmington highlighted a number of cases in which the NLRB found in favor of the employer. The deciding factor in many of these cases is whether the online conversation "grew out of" earlier protected concerted activity.

For example, there was a case in which a bartender complained to a fellow coworker about not being able to share in the tips of the waitstaff. Several months later, the employee voiced his complaint to his stepsister on Facebook. He then followed the complaint with negative characterizations of the restaurant’s clientele, referring to them as "rednecks."

Unlike the luxury car dealership, where the employee’s actions were an outgrowth of the staff’s complaints during the sales meeting, the NLRB concluded that the bartender’s online badmouthing was not an outgrowth of his prior comments to his coworker months earlier.

"While individual activities may share protection, it’s only if there is a logical outgrowth of concerted activity," Warmington said. "This was just one employee with a gripe making inappropriate remarks about customers and the employer."

Each Case Is Different

There is still quite a bit of murkiness surrounding what is and is not protected online speech among employees, but in general, Warmington says the NLRB relies heavily on the context of the remarks in order to make a judgment call.

"The NLRB is looking whether the speech is about the terms and conditions of employment, whether it’s an individual gripe or a group issue, and whether the issue has been brought to the attention of management or not."

This is a lot to take in, and the bottom line for this and most postings on social media site is that if you think you shouldn’t post it, don’t. No matter how private you think your settings are, there could still some way they could be used against you.

Keith Ecker co-authors the Lawyers.com blog.

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