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?