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Sep 2, 2014

By Eric B. Meyer

Can an employee curse out their boss on Facebook and get away with it?

It’s easier than you think. Indeed, a recent decision from the National Labor Relations Board bears this out.

As we’ve discussed before, the National Labor Relations Act, gives covered employees (that would include not just those in unionized workplaces, but many, many folks in non-union jobs too) the right to discuss the terms and conditions of their jobs (stuff like pay, benefits, crappy bosses, etc.) together.

This is called protected concerted activity.

These protected discussions don’t have to be in the workplace. Online speech is covered, too.

Online chatter about work still chatter about work

In Three D, LLC d/b/a Triple Play Sports Bar and Grille and Jillian Sanzone, two employees discovered that they owed more income taxes than they had expected, allegedly due to an employer withholding error. One of the employees discussed this at work with other employees, and some employees complained. In response, the company planned a staff meeting to discuss these concerns.

In the meantime, a former employee wrote on his Facebook page, “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” This status update elicited a series of responses, including one from employee who called her boss “an asshole.” Another employee “liked” one of the other messages in the thread.

Ultimately, the company learned of the Facebook chatter and fired several employees for disloyalty.

Protected concerted activity is, well, protected

On these facts, the National Labor Relations Board determined that the employees should not have been fired.

Indeed, even the employer conceded that the employees had engaged in protected concerted activity. However, it argued that the comments were defamatory and disparaging and, therefore, the National Labor Relations Act did not protect them. (We’ve seen this before).

The Board, however, disagreed:

The employees engaged in protected concerted activity by taking part in a social media discussion among offsite, off-duty employees, as well as two non-employees. No manager or supervisor participated in the discussion, and there was no direct confrontation with management. Although we do not condone her conduct, we find that Sanzone’s use of a single expletive to describe a manager, in the course of a protected discussion on a social media website, does not sufficiently implicate the Respondent’s legitimate interest in maintaining discipline and order in the workplace…”

Limits to online speech get stretched pretty far

The NLRB acknowledges an employer’s potentially overriding interest in “maintaining workplace discipline and order in the same manner that a face-to-face workplace confrontation with a manager or supervisor does.” Plus, an employer has a “legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation (and the reputations of its agents as to matters within the scope of their agency) from defamation.”

However, the comments here appeared on a personal Facebook page (as opposed to the company’s Facebook page or other public online forum). And there was no evidence that the Facebook privacy settings utilized for this thread enabled public access.

Thus, the Board likened this discussion to a conversation that could potentially be overheard by a patron or other third-party, rather than a conversation that was clearly directed at the public. This means that, when a bunch of your employees discuss work on one of their Facebook pages, more likely than not, that speech will be protected.

What employers should do

So, instead of trolling Facebook for workplace bashing, how about offering your employees a more constructive avenues to complain?

Try an open-door policy. Also, walk the floor and initiate conversations with your employees — I know, face-to-face, e-gads! — to see if they are having any workplace issues.

And just remind your employees that, while venting online is OK, it’s more effective to communicate concerns and problems directly to the company.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.