Can you punish workers for griping about their jobs on Facebook?

You might think that it’s okay to fire or discipline employees who complain about their jobs on Facebook or other social media sites – especially if they start calling their supervisors names, or bad-mouthing the company in a public way.

But you need to be careful. In many cases, disciplining an employee for a Facebook rant could violate federal labor law, and result in a civil complaint being filed against you by the National Labor Relations Board.

That’s true regardless of whether the employee belongs to a union.

In the past year, more than 100 formal complaints have been brought before the NLRB over “Facebook firings,” involving employers ranging from giants such as Wal-Mart to local bars and car dealerships.

In about half the cases it reviewed, the NLRB issued a civil complaint.

In one of the first cases, a paramedic was fired after she called her supervisor a “scumbag” and a “17” (code for a psychiatric patient) on Facebook from her home computer. The ambulance company ended up settling the complaint with the government – and as part of the settlement, it agreed to revise its policy on employees’ Internet postings.

Why the problem?

The problem is that a federal law makes it illegal for companies to discipline workers for “protected concerted activity” – regardless of whether the worker belongs to a union.

That means that workers have a right to discuss their conditions of employment with each other, try to speak on behalf of other workers about workplace conditions, and attempt to improve things for other workers.

If a Facebook rant arguably falls into any of these categories, it may be protected.

For instance, the paramedic was unhappy about being reprimanded earlier for a customer complaint, and made the “scumbag” comment during an online discussion with other employees. The NLRB decided that discussing a supervisor’s actions with co-workers was “protected concerted activity.”

As a general rule, as long as workers are commenting on workplace issues with each other or hoping to improve work conditions generally, they can even call supervisors names or disparage the company in certain ways – although they can’t make verbal or physical threats.

On the other hand, if workers are just griping to their friends outside of work about something that only affects them personally, and they aren’t trying to improve general conditions or speak for other employees, they aren’t protected.

The NLRB also says that employers can punish name-calling that goes too far, although it hasn’t been very clear about what kinds of insults cross the line.

Some recent examples

In one case, a Frito-Lay warehouse worker was fired after saying on Facebook that he was “a hair away from setting it off” in his workplace. The worker claimed that he was just venting about the company’s sick-leave policy, but the NLRB sided with Frito-Lay and said the company could reasonably have interpreted the comment as a threat to cause physical harm.

On the other hand, a non-profit organization in Buffalo, N.Y. was ordered to reinstate five workers it had fired after they complained online about a co-worker who had criticized their work ethic. One wrote that “[I’ve] about had it!” and another said, “Tell her to come do [my] f—ing job.” According to the employer, the co-worker felt so threatened by the comments that she had a heart attack. But a judge found that the workers’ speech was protected, and didn’t amount to a specific threat.

Another case involved a Chicago bartender who complained on Facebook that his company’s tip-pooling policy “sucked.” While the complaint was about a workplace issue, the NLRB sided with the employer because the bartender directed the gripes only to his friends and didn’t bring up the issue with co-workers.

Also in Chicago, a BMW salesman was fired after he made two sarcastic posts on Facebook. One mocked his employer for serving hot dogs and bottled water at a sales event for luxury cars. Another showed a picture of a customer’s 13-year-old son driving an SUV into a pond.

The result? A judge found that the hot-dog post was protected (because other employees were also complaining online about the sales event, which could hurt their commissions), but the salesman could be fired for the pond photo, because it had nothing to do with his working conditions.

We’d be happy to discuss these issues with you, and help you craft or update a social media policy that addresses your concerns while not restricting employees in a way that creates legal problems.

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