Labor Board Continues To Warn Companies Not To Fire People Based On Tweets

from the protected-activity dept

Earlier this year, we wrote about how the National Labor Relations Board (the NLRB) had noted that a post on Facebook complaining about a boss represented "protected concerted activity" under the NLRA and thus you couldn't be fired for that. Many people in our comments simply insisted this wasn't true. However, the NLRB appears to be continuing to make this point. Thomas O'Toole draws our attention to a report on a number of recent NLRB statements and activities that again make it clear that it won't look kindly on firings over people speaking out on social networks about their workplace.
  • Protected Concerted Activity: In a discipline case, the Board will take a very broad view when deciding whether the employee’s social media activities constituted “protected concerted activity” under the NLRA. The Regional Director’s handout states, “It doesn’t take much to establish the concerted nature of the discussion, so long as it involved or touched upon a term or condition of employment,” and “anything short of physically threatening activity will likely be protected.”
  • Recent Cases: The NLRB continues to be active in the area. The handout provides four examples of recently filed complaints, or threatened complaints, involving social media in addition to the case against AMR. These cases show just how broadly the Board construes “protected concerted activity.” They involved, according to the handout, negative comments about a supervisor posted on Facebook, a posted cartoon video about a dispute between two departments, a Facebook discussion about the employer’s withholding of taxes, and a Facebook discussion about the employer’s decision to fill an open position with an outside, rather than an inside, applicant.
So it appears, yet again, that the NLRB is taking an extremely broad view on what constitutes protected activity on social networks. While I understand where the NLRB is coming from, it does seem that this viewpoint is excessive. It may be (and likely is) silly for most companies to fire an employee for venting about their job on Facebook or Twitter, but should it really be illegal? I recognize all too well how much effort went into making sure that employees had the ability to be protected for "concerted activity." The idea was to stop companies from firing people for gathering together to stand up for their rights. But should that really extend to situations involving people bitching about their bosses? Again, it might not be smart for companies to fire people who do that... but should it be against the law?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    TechnoMage (profile), May 5th, 2011 @ 1:58am

    So What should be the options?

    Whats the options? I can only see two possibilities, because with the way Corporate America operates now a days... If it isn't illegal they do it, even then... but I digress...

    What we would have if this wasn't illegal:

    If your EVER speak out against anything your company does, or ever imply in ANY way that you aren't the happiest person ever at their job, that the company should be LEGALLY allowed to fire you?

     

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  2.  
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    EE, May 5th, 2011 @ 2:22am

    Absolutely. Unpleasant things in the workplace can be illegal. What is the real difference between "I don't like my boss" and "I don't like my boss because he sexually harasses me". Both comments could be describing the same situation but in one the context is made clear and in the other it is not. Now, what if HR sees a problem brewing and decides it is time to fire you. HR isn't going to tell you that you're fired because of a comment that mentions sexual harassment. It will find a pretext. It will say it fired you because of the comment about not liking to work late, possibly due to your sexually harassing boss, but no context was provided so they can get away with it.

    If you don't think this is how things work, you are naive.

     

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  3.  
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    Michael Kohne, May 5th, 2011 @ 4:20am

    Sorry but yes, it needs to be illegal

    Without tying a company's hands on the matter, you'll have all kinds of abuses covered up by pretending that the firing was to do with something outside of work, not with the underlying actual problem.

    While I'd like to give a business more leeway, I think that we've seen that they'll use that leeway to abuse the workforce.

    I think the NLRB has the right of it here.

     

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  4.  
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    Anonymous Coward, May 5th, 2011 @ 4:58am

    I can sorta see both sides of the issue here. On the one end, job security is not really the governments job. On the other end, if corporations are allowed to fire someone for saying something that they disagree with (ie: say if someone criticized patents and the corporations don't like that) it can severely hinder free speech. Everyone simply turns into a corporate puppet afraid to ever say anything critical of our system of corporations in fear of getting fired and not ever being able to find a similar job elsewhere in the future because no one else will hire you after expressing such criticisms.

    I guess my view is more broad. Corporations often benefit from government imposed monopolies. This reduces competition. This reduced competition gives those seeking employment fewer potential employers to choose from and those who they can choose from are more likely to be monopolists that benefit from monopoly power and so they may think alike. So, in that sense, I don't mind some regulations against their behavior. I don't like the idea that the government cans ever simply hand anyone an unregulated monopoly. If you want free market capitalism, then you don't get a govt granted monopoly. If you want a govt granted monopoly, then you get stricter regulations on your behavior, and that includes stricter rules about the products that you offer (ie: rules that you may not like but that benefit consumers), stricter rules about how you treat your employees, and stricter govt imposed audits to ensure that the cost of R&D justifies the cost of your product (ie: especially when it comes to pharmaceutical corporations, who are always afraid to allow the government to send independent auditors to audit their costs). But to get a govt imposed monopoly and the ability to do what you want allows you to more easily mistreat your employees and rip off your customers (since they have fewer competitors to go to). If you want to force society to respect your govt imposed monopoly then you must allow society the ability to ensure that those monopolies are justified (allow it to audit your info and ensure the costs of developing x justify the price). If you want free market capitalism, then you don't get any govt imposed monopolies. But you can't have it both ways.

     

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  5.  
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    Anonymous Coward, May 5th, 2011 @ 5:00am

    Re:

    that benefit from govt imposed monopoly power *

     

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  6.  
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    Anonymous Coward, May 5th, 2011 @ 5:02am

    Re:

    I don't like the idea that the government can ever simply hand anyone an unregulated monopoly. *

     

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  7.  
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    Matt (profile), May 5th, 2011 @ 5:24am

    Re: So What should be the options?

    Let's take a broader look

    Do you believe people should be able to associate with whomever they like or should the government tell you who can or can't be a friend or acquaintance?

    Hopefully you answer that with you should be able to pick your friends. Let's take it a bit further, suppose your car is broken down and one of your friends is a mechanic. If you offer to pay him to help you fix it does that mean that the government is now allowed to prevent you from breaking off the friendship just because you paid him for labor?

     

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  8.  
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    Designerfx (profile), May 5th, 2011 @ 5:40am

    answer is yes, absolutely

    The issue here is that if they don't prevent people from being able to be fired over what consists of "complaining about their boss", etc, it becomes a very slippery slope of loosely defined terms.

    What consists of bitching? do they consider "ugh rough day today" equivalent to bitching about their bosses? It's entirely possible.

     

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  9.  
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    Jon Renaut (profile), May 5th, 2011 @ 6:14am

    Note: This only applies to unionized labor

    It should be noted that the NLRB only handles cases where there is a union - employers can still fire non-union employees for just about anything they want, including things said on Facebook. I think the laws on that sort of thing vary by state, but I also think most states set a pretty low bar.

     

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  10.  
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    Jon B. (profile), May 5th, 2011 @ 6:17am

    Of course he's one of the best selling authors ever... he's sold brazilians!

     

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  11.  
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    Anonymous Coward, May 5th, 2011 @ 6:25am

    What EE said is exactly correct. If a company wants to fire someone, they will use the safest reason no matter how insignificant.

     

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  12.  
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    Anonymous Coward, May 5th, 2011 @ 6:52am

    Response to: Anonymous Coward on May 5th, 2011 @ 6:25am

    However, labor lawyers are pretty good about ferreting out the real reason and raise a big stink.

     

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  13.  
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    Josh in CharlotteNC (profile), May 5th, 2011 @ 6:53am

    Where's the line?

    The idea was to stop companies from firing people for gathering together to stand up for their rights. But should that really extend to situations involving people bitching about their bosses?

    So where is the line between complaining about your boss on Facebook and forming a group on Facebook to complaining about management of your employer?

    If there is a distinction, its fuzzy enough that the NLRB is justified in taking the stance they did.

     

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  14.  
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    David (profile), May 5th, 2011 @ 6:55am

    Re: Re: So What should be the options?

    Huh?

     

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  15.  
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    Jesse (profile), May 5th, 2011 @ 7:16am

    It seems to me it's less about being against the law, and more about what kind of damages you are liable for as an employer. An employer can fire whoever they like, but if they are going to fire someone without just cause, then they should be liable for appropriate damages (i.e. severance).

    With the exception of temp work, entering an agreement of employment is like an implied contract. To end that agreement abruptly without reasonable justification, on either side, can happen but there should be some compensation for the breach of "contract."

    That's [roughly] how is works up here in BC. Employees, too, have to give reasonable notice before quitting or else be liable for damages.

    I think the reason why people expect perfect loyalty from employees is a holdover from the feudal days of our history. I think it's time we move away from that mentality.

     

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  16.  
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    Bengie, May 5th, 2011 @ 7:19am

    New law

    We need a new Federal law that says you cannot be fired for anything you say or do outside of work so long as it is true and/or doesn't violate trade secrets and isn't illegal.

     

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  17.  
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    Matt (profile), May 5th, 2011 @ 7:30am

    Re: Re: Re: So What should be the options?

    It's all about free association, working for someone is no different.

    It would be ridiculous to have the government choose our friends for us it's no less ridiculous to have them regulate who people can hire or work for.

     

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  18.  
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    Overcast (profile), May 5th, 2011 @ 7:43am

    This is why I wouldn't use my real name here...

    I'm not too extreme, but still. I do little, if anything with Facebook.

     

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  19.  
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    JC, May 5th, 2011 @ 7:55am

    It's my firmly held belief that the government has no right to tell any company who they must employ.

     

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  20.  
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    Chris in Utah (profile), May 5th, 2011 @ 8:13am

    The gears are turning. A few questions.

    What do we call it when any body restricts the speech of someone else?

    Are there laws for this?

    When are the criminally liable?

    When is the government liable!?!

    Is there a simple way solve this rather than relying on the time involved with relevant cases?

    ... tell me no lies.

     

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  21.  
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    Chris Rhodes (profile), May 5th, 2011 @ 8:34am

    Re:

    This. Completely and totally.

     

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  22.  
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    Anonymous a-hole, May 5th, 2011 @ 8:42am

    Re:

    So, if you file a (true) sexual harassment lawsuit against a senior manager, the company has a right to fire you for this?

    That's some fucked up thinking there.

     

    reply to this | link to this | view in thread ]

  23.  
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    Anonymous Coward, May 5th, 2011 @ 9:10am

    There is a thing called Employee Code of Conduct

    Most (if not all) companies have an employee code of conduct agreement (or something similar) that employees sign off on when they're hired. If you violate it, then you're subject to discipline as prescribed in that agreement. If that agreement includes termination, then it's all good and legal.

    People, before you post stupid shit or vent on the web, review your company's employee code of conduct first. Ignorance might be bliss, but it doesn't necessarily protect or preclude you from being disciplined or fired.

     

    reply to this | link to this | view in thread ]

  24.  
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    MrWilson, May 5th, 2011 @ 9:15am

    Re: Re: Re: Re: So What should be the options?

    It doesn't seem like you're talking about the actual issue.

    This is about whether or not it should be illegal for companies to fire employees for what they say on social networks.

    Even if that were illegal, it would have nothing to do with having "the government...regulate who people can hire or work for."

    This is about protecting current employees, not about hiring practices.

    Your example about the mechanic/friend makes no sense. Paying for someone's services is not the same as hiring them and, once again, this has nothing to do with hiring practices, and even if it did, the government wouldn't be capable of passing a law that could regulate with whom you could associate regardless of business relationships or employment.

     

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  25.  
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    Ron Rezendes (profile), May 5th, 2011 @ 9:52am

    Re:

    Very well put - I whole heartedly agree with your sentiment!

     

    reply to this | link to this | view in thread ]

  26.  
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    Ron Rezendes (profile), May 5th, 2011 @ 9:52am

    Re:

    Very well put - I whole heartedly agree with your sentiment!

     

    reply to this | link to this | view in thread ]

  27.  
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    Ron Rezendes (profile), May 5th, 2011 @ 10:02am

    Of course in California....

    Employees are at-will employees and unless your employment is contracted (specific terms and often length of service) you can be fired at any time for any reason or NO REASON at all!!

    The "balance" side of this awkward situation is that the employer is responsible for paying for your unemployment benefits if the reason you were fired was not any mis-doing on your part.

    For example:
    Company X: We fired Jon because we just don't like the guy.
    State of Ca.: That's fine, here's the bill for his unemployment benefits.

    Company X: We fired Jon because he was always late to work and he stole company property.
    State of Ca.: That's fine. By the way Jon, you won't be receiving any unemployment benefits!

     

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  28.  
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    Squirrel Brains (profile), May 5th, 2011 @ 10:05am

    Re: Re:

    The answer could be to create a private cause of action that allows a former employee to sue in instances of retaliation and retaliation. The employer doesn't have to keep someone one the job, but if they are discriminatory, retaliatory, or arbitrary (in the legal sense), they will have to pay for that action.

     

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  29.  
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    Christopher (profile), May 5th, 2011 @ 10:52am

    Re:

    Agreed. The fact is that it should be illegal for ANYONE to be fired simply because they complain about their workplace or because someone related to them complains about their workplace.

    Yes, I have heard of people being threatened with being fired because their CHILDREN post comments from their parents about the craptacular working conditions at their parents workplaces, coming from listening to their parents vent about it at home.

     

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  30.  
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    Christopher (profile), May 5th, 2011 @ 10:54am

    Re: Sorry but yes, it needs to be illegal

    I don't want to give businesses more leeway. The fact is that if someone is doing their job as well or better than everyone else, the business should NOT have the right to fire them just because they point out that the people in the business are overworked, that they don't have the correct equipment, etc.

    Sometimes, SHAMING a business is the only way to get them to change their tune.... without the right to vent online and do that shaming, a lot of businesses will try to get away with metaphorical murder.... and sometimes LITERAL murder.

     

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  31.  
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    Christopher (profile), May 5th, 2011 @ 11:00am

    Re: Response to: Anonymous Coward on May 5th, 2011 @ 6:25am

    When people can AFFORD to use them, yes.... however, most people think that it is expensive as crap (it is) and not worth it to make a stink.

     

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  32.  
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    Jesse Townley (profile), May 5th, 2011 @ 11:17am

    Good!

    This is an excellent stand that the NLRB is taking.

    It is in line with the purported overarching theory of discipline in the workplace: employees should be judged on their performance of their specific job, not whether they're a particular race, if they have big boobs, if they bitch about the boss outside of work, etc.

    Discipline/terminate someone based on their job performance, not on their personal opinions. The slippery slope here is obvious and I'm actually kind of surprised that Mike & others aren't 100% behind this.

    You learn something new every day!

     

    reply to this | link to this | view in thread ]

  33.  
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    Gnosti, May 5th, 2011 @ 2:06pm

    Re: Re: So What should be the options?

    That depends, does the mechanic make you sign a non-compete?

    I think that trying to equate a one time service with a mechanic with a corporations ability to fire someone based upon criticism of the corporations actions is a bit narrow minded not broad.

    For one, a mechanic is an employee of the corporation/shop for which she or he works for. which is in turn employed by the consumer for the labor in which mechanic provides. Even if the mechanic owns the shop, this is still the case.

    The consumer has a right to pick and choose what company gets their business as he or she pleases, and should the mechanic not perform his/her duty satisfactorily, both the company and the consumer have a right to utilize a different source of labor.

    However, if the mechanic is unhappy with the way the shop of which they are employed is run and vents her/his frustrations to a social media outlet but otherwise does the work for which he/she is under contract to perform, The company has no legal footing in which to fire said employee.
    (Except for 'Right to Work' states such as Texas where the company can fire you for no reason at all. But that a different debate altogether)

    They should instead seek to hear the employees grievances and work with the employee to remedy them in order to create a happier workforce and thus a happier consumer base. As happy workers tend be harder workers and harder workers generally make for happier customers.

    I think the situation should be seen more in the following light.

    I think it would be difficult if not impossible to deny that our government is now under a decent bit of control from corporations. They have used the powers of government to push corporate agenda even at the detriment of the consumer and environment. It can only be concluded that with each passing day our government becomes more and more of a proxy for corporate rule. However unlike our government, corporations are not necessarily beholden to the constitution or The Bill of Rights. If our government is to continue down this path of becoming (IMHO) more and more of a puppet to corporate interests then shouldn't we strive to make those corporations beholden to the same documents which guarantee our civil liberties while we still have time do to so?
    Otherwise, as our government becomes more marginalized by the corporate agenda, so to will our civil liberties. That is, unless we can begin to create laws to keep that from happening.

    Just my two cents worth.

     

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  34.  
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    JC, May 5th, 2011 @ 5:29pm

    Re: Re:

    Where in the US constitution is the government granted the power to regulate a citizen's hiring and employment practices?

     

    reply to this | link to this | view in thread ]

  35.  
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    Squirrel Brains (profile), May 6th, 2011 @ 8:11am

    Re: Re: Re:

    Commerce Clause. If you participate within interstate commerce, Congress can regulate you. That is what the Supreme Court has said for about 70 years now (though there has been a tad bit of push back in the last few years). What is interstate commerce is very broad.

     

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  36.  
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    btr1701 (profile), May 6th, 2011 @ 6:21pm

    Re: Re: Re: Re: Re: So What should be the options?

    > This is about whether or not it should be illegal for
    > companies to fire employees for what they say on social
    > networks.

    If they can fire you for mouthing off and saying the same thing to them in person, why does the social network suddenly change things?

    Once again, this peculiar notion arises that for some reason the normal rules all go out the window once "on the internet" enters into the equation.

     

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  37.  
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    btr1701 (profile), May 6th, 2011 @ 6:24pm

    NLRB

    > It may be (and likely is) silly for most companies to fire an
    > employee for venting about their job on Facebook or Twitter,
    > but should it really be illegal?

    Mike, this only applies to unionized employees. The NLRB policies don't have any legal effect on non-union workers.

    The way you wrote your article gives the impression that these rules apply to all workers everywhere.

     

    reply to this | link to this | view in thread ]

  38.  
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    toyotabedzrock (profile), May 8th, 2011 @ 10:58am

    Very Disappointed

    You don't seem to remember that a company has an advantage which is why these laws exist. They just have been ignored since we had Corporate shill for a president until recently.

     

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  39.  
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    Jessica, Jun 18th, 2011 @ 9:04pm

    Shouldn't be an issue

    Facebook should be your personal space and one should not be fired for what they say, it is UNCONSTITUTIONAL. Only if they are posting comments on company time should action be done. It would be the same as someone recording your conversation in your lving room and then taking it you your boss.

     

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  40.  
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    v truck driver, Aug 9th, 2011 @ 7:28am

    I got fired for speaking my mind

    I am a female truck driver this company I was working for wanted me to lie on my log book and drive A death trap.The worst of It all my daugher got real ill when I was at work no phone service what so ever.I went to grt a load of water got the message she was ill.SO I called the boss I HAD TO WORK.He wanted me to stay passed my 14 hours I did not.He came to my home he had already left me a message that said I was fired.Itold him my family came first.Just for speaking my mind I got fired.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    v truck driver, Aug 9th, 2011 @ 7:28am

    I got fired for speaking my mind

    I am a female truck driver this company I was working for wanted me to lie on my log book and drive A death trap.The worst of It all my daugher got real ill when I was at work no phone service what so ever.I went to grt a load of water got the message she was ill.SO I called the boss I HAD TO WORK.He wanted me to stay passed my 14 hours I did not.He came to my home he had already left me a message that said I was fired.Itold him my family came first.Just for speaking my mind I got fired.

     

    reply to this | link to this | view in thread ]


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