Facebook Posts And Tweets That Can Get You Fired
You may know that you can't be fired for encouraging co-workers to unionize. What you may not know is that you don't have to encourage co-workers to unionize or be part of a union to be protected by the National Labor Relations Act, which says:
At OnBoard you will receive no health insurance, sick days, vacation days or one single benefit. You will ride around on unsafe buses, without the benefit of a PA system, or sometimes even a seat.
And perhaps most egregious of all of the flaws, PAYCHECKS BOUNCE, yes that's right, they bounce.
The "concerted activity" provision applies whether or not the company has a union, and covers pretty much every workplace. It covers anything that non-supervisory employees of non-government employers do for mutual aid or protection. So, can you be fired for what you say on Facebook and Twitter? It depends on what you say, and who you say it with or about. Here are some examples of social media firings that the NLRB found to be illegal:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
1. Calling a manager immature and saying the company founder would roll over in her grave. When employees had posted an exchange about working conditions, the NLRB found that they were fired illegally. It probably didn't hurt that the exchange ended with this:
Lesson learned: If you're going to rant, mention that you think they're breaking the law or something about worker's rights.
"hey dudes it's totally cool, tomorrow I'm bringing a California Worker's Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that's going on that's in violation 8) see you tomorrow!"
employees who had a Facebook discussion, complete with foul language, about a co-worker's intention to complain to management about their work performance. The company said that they were fired for harassing a co-worker for complaining, but the NLRB disagreed. Lesson learned: It's best to complain with a group of co-workers.
3. Foul rant about supervisor. In what is probably the most famous Facebook firing case, the NLRB found that an employee's rant was protected. The employee's comments included:
The company said that she was rude and unprofessional, and violated their internet policy. Her co-workers then weighed in with comments supporting her and with further negative comments about the supervisor. The company had a policy that prohibited: "disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors." It also prohibited employees from depicting the company in any way in social media. That's pretty broad.
"looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***."
Part of the NLRB's beef was that the restriction was too broad. A big reason that the NLRB found her activities protected was the fact that it resulted in comments from co-workers. If you post something just to vent and it doesn't result in a discussion with co-workers, you may not be in the same boat. Lesson learned: Encourage co-workers to comment about your post.
But wait! Before you decide to slam your employer on Facebook or Twitter, take a look at these cases where employees' firings were found to be perfectly legal:
1. A reporter complaining about a lack of homicides to cover. It wasn't the complaint, but the way he said it that got him in trouble: "What?!?!?! No overnight homicide. ... You're slacking, Tucson." Another began, "You stay homicidal, Tucson." The NLRB said the post was offensive, and was not a complaint about working conditions.
2. Mocking a neighbor. The NLRB found that firing of a BMW salesman for photos and comments posted to his Facebook page did not violate the NLRA because he was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership, which was not concerted activity and was not protected. However, the NLRB also found that comments he posted criticizing his company for serving hot dogs, chips and bottled water at a luxury car event, were protected, along with photos of it. Too bad, since the company convinced the NLRB that he was fired solely for the neighbor-mocking. The NLRB also noted that the company's social media policy was illegal. That didn't help this guy though.
Facebook conversation with his stepsister saying that he hadn't had a raise in five years and that he was doing the waitresses' work without tips, he might have been OK if he had stopped there. Instead, he called his employer's customers "rednecks" and said that he hoped they choked on glass as they drove home drunk. The NLRB said that the employer didn't break the law when they fired him for his rant. The NLRB also said that, because he only complained about his own working conditions, he also didn't engage in concerted activity that was protected. Had he said that all the bartenders were doing the waitresses' work without tips (and had he not insulted the company's customers), he might have had better luck.
4. Complaining about own working conditions. An employee who posted a nasty rant wasn't protected, not because of the foul language, but because he only griped about his own working conditions, even when co-workers commented about his post. It said things like, "Wuck Falmart! I swear if this tyranny doesn't end in this store they are about to get a wakeup call because lots are about to quit!" and "You have no clue...[boss] is being a super mega p***! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price...that's false advertisement if you don't sell it for that price...I'm talking to [Store Manager] about this s*** cuz if it don't change walmart can kiss my royal white a**!" Had he said "we get chewed out" instead of "I get chewed out," the result might have been different.
5. Saying the workplace is spooky. An employee of a mental health facility was not protected when posting comments that included these: "Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway," and, "My dear client ms 1 is cracking up at my post, I don't know if shes laughing at me, with me or at her voices, not that it matters, good to laugh." Unfortunately, her co-workers weren't her Facebook friends, so the NLRB said the exchange wasn't considered concerted activity. She also wasn't advocating any change, but was just reporting what was happening at the time. No protection.
6. Criticizing the company on an elected official's Facebook page. An employee was fired after she posted comments on Sen. Richard Lugar's Facebook page that were clearly about working conditions. They included: "The reason they contract out to us? BECAUSE WE'RE THE CHEAPEST SERVICE IN TOWN! How do we manage that? BY PAYING OUR EMPLOYEES $2 LESS THAN THE NATIONAL AVERAGE! We both make less than $10an hr. And he's worked for them 3.5 yrs! ...the fact that we're employees of a cheap contract company instead of government employees hurts us." She was complaining about her husband's and her working conditions, but the NLRB said it still wasn't concerted activity because she didn't discuss it with co-workers, or even her husband.
I know what you're thinking. What about the First Amendment? Sorry, but it doesn't help these folks. The First Amendment only applies to government action, not a company's actions. It doesn't provide you any free speech protection at work unless you work for government.
recent case of a waitress fired for posting, "Stupid Cops better hope I'm not their server FDP." (FDP means F*** Da Police). Granted, she had reason to be irked, since a police officer had issued a $2,500 ticket to her 3-year-old for public urination when he pulled down his pants in his own front yard. Still, this is one of those posts that probably isn't protected.
On the other hand, an employee who complained about sexual harassment on Twitter and posted photos of the harassers, and who was fired because of the fact that she publicly shamed them, probably has a remedy with the NLRB, assuming that she isn't a supervisor (and possibly with the EEOC, even if she is a supervisor). It will be interesting to see what happens if she takes some legal action.
If you were fired or disciplined for complaining with or on behalf of co-workers about working conditions, you only have six months from the date that you were told you were being fired or disciplined to file a Charge Against Employer with the NLRB, which is your first step. If the NLRB thinks you're right and files a complaint on your behalf, the administrative law judge can order that the employer cease and desist their illegal practices. If you win, you can get reinstatement, back pay and interest. You can't get emotional distress or attorney's fees. Still, it might be a good idea to talk to an employment lawyer in your state before you contact the NLRB.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues that you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave or other employment law issues, you can contact me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.
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