Labor Board Says Online Gripes Are Protected

Executives considering disciplining em­­ployees who complain about their working conditions on social media such as Facebook or Twitter may want to reconsider after a series of recent opinions from the National Labor Relations Board (NLRB).

The NLRB, a government agency focused on protecting worker rights, has ruled against business owners in several recent cases involving the firing of workers who discussed their work environment with fellow employees through social media outlets.

The agency’s position is that the National Labor Relations Act protects most discussion of work conditions among employees, including complaints about supervisors, even at non-union companies. Online discussion of work conditions falls under that protection, says Tony Wagner, a new media specialist at the agency.

A key caveat: The NLRB hasn’t given employees free rein to whine about their jobs. The complaints must be in the context of employees talking with each other, or talking on behalf of other employees. If an employee posts his gripes to Facebook friends without other coworkers participating in the discussion, then the complaint generally isn’t protected by the NLRB, Wagner says.

NLRB determinations of protected worker speech are “very contextual,” he says.

Still, the protection appears to be fairly broad. Businesses that have social media policies prohibiting employees from discussing work conditions with each other online may violate NLRB rules, Wagner says.

In August, NLRB staff issued a report on 14 recent cases involving social media. The agency found that four employers had illegally fired workers for using social media, and three employers had created overly broad policies banning employee use of social media.

“The board has allowed the use of some profane language toward supervisors and others,” says William ­Finegan, an employment lawyer in the Fulbright and Jaworski law firm. However, physical threats or harassment are not protected, he says.