The Facebook phenomenon continues to soar to stratospheric heights of popularity. Along with this burgeoning interest and usage, workers have increasingly posted negative, unflattering or scandalous comments on their Facebook Page, often concerning their supervisors and/or their workplaces. As a result, many of these posters have had to endure discipline and even discharge by their employers. Today, I want to explore the circumstances in which workers can post comments on Facebook with the assurance their employers lack legal authority to retaliate against them for their writings.
To understand how companies can take adverse action against their staffers because of objections to Facebook postings, you need to have a fundamental understanding of the basic relationship between employers and employees in America. Unless you work pursuant to a collective bargaining agreement, an individual employment contract, or a government civil service system, you probably work on an "employee-at-will" basis. Generally, as an employee at-will you have the right to leave your job at any time for virtually any reason (e.g., a better job; continuing education). Your employer, in turn, essentially enjoys the corollary right to discharge you for any reason which does not violate a law or a contract.
Correspondingly, for the most part, your employer can discipline you for any legal reason if you work as an employee at-will. With respect to private Facebook postings, companies have exercised their employment at-will privilege by refusing to hire applicants and by disciplining or discharging workers for their unflattering, outrageous, negative and/or otherwise "unacceptable" posted comments. Based on their at-will status with these companies, these applicants and workers generally do not have any recourse to challenge their employer's adverse employment actions in response to their postings.
However, one major nationwide exception exists. This exception provides virtually all of these private sector at-will employees with a measure of protection for certain postings under federal law.
Section 7 of the National Labor Relations Act ("NLRA") allows non-union workers as well as union employees in the private sector to engage in protected concerted activities, i.e., activities involving two or more workers acting together to improve working conditions. For decades, the National Labor Relations Board ("NLRB") and federal appellate courts have repeatedly determined that discussions concerning working conditions constitute protected concerted activities under Section 7.
Within the last year, the NLRB has repeatedly made clear that the Section 7 protection covering employees' one-on-one discussions regarding working conditions extends to electronic communication amongst employees via Facebook. In light of Section 7, the NLRB has recently recognized that companies could not lawfully discipline or discharge non-unionized employees who posted scathing criticisms of their work conditions and/or their supervisors and shared said criticisms with other employees over Facebook. In instances in which management terminated workers who shared these critiques with coworkers on Facebook, the NLRB has found violations of Section 7 and has ordered these companies to rehire them with full back pay and restoration of their seniority and other job benefits.
Employees and employers should learn the following lessons from the above-described trend: All private sector workers covered under the NLRA, irrespective of whether they are unionized or not, have the right under federal law to discuss work conditions amongst themselves. If two or more employees engage in such discussion via Facebook or other electronic means, said communication is likely protected under Section 7 of the NLRA. Non-union workers will also likely increasingly petition the NLRB for relief if their employers subject them to discipline or discharge for electronic postings or other communication regarding their working conditions.
A couple of caveats bear mentioning: The protection provided under Section 7 remains narrow in scope. For instance, if you called your boss a "scumbag" in a one on one conversation with him, you will in all likelihood find yourself unemployed in short order. Similarly, if you post on a general message board your boss is a scumbag to no one in particular, you may also find yourself fired. In contrast, if you express the same derogatory assessment of your supervisor during an off-hours conversation or in a posting on a private Facebook Page with your colleagues, then Section 7 would likely foreclose your employer from lawfully taking any adverse action against you. For purposes of whether Section 7 potentially applies, a critical distinction exists between communicating with coworkers and just spouting off.
Additionally, you may want to thoroughly consider beforehand whether you and your colleagues want to put your boss and/or job "on blast" on Facebook. It is one thing to utilize Facebook as a medium for organizing and/or raising awareness of conditions at work. It is another thing for you and your coworkers to savagely critique your supervisor and/or your workplace as only a way to blow off steam. You may indeed have the right to do so pursuant to Section 7. But to do so without an overarching plan of action would appear purposeless, if not foolhardy. You do not want to needlessly put a "target on your back" at work. A manager with a vendetta may wait for months, if not years, to plot a basis to retaliate against you which will not be prohibited under the law. In summary, if you and your colleagues feel the need to criticize your workplace conditions on Facebook, you probably want to do so in the context of achieving a broader objective at the jobsite.
On a related note, if you have encountered other workplace difficulties, you too can effectively seek your remedy. You do not have to endure mistreatment in silence. You have rights! You do not have to be a victim at work. Be a victor!
Eric Steele has consulted with and helped hundreds of individuals concerning their rights in the workplace. He has authored an invaluable ebook, Unfair Termination: Know Your Rights and Obtain Financial Justice, that is chock full of information on how you can protect your rights when faced with workplace difficulties. For more information on how you can know your workplace rights, protect your rights, and avoid being a victim, click on http://www.unfairterminationrelief.com.
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