This is why it’s nice to have a Democratic majority on the National Labor Relations Board: workers get rights. The National Labor Relations Board ruled that an employee can safely discuss work issues with their co-workers on Facebook without fearing punishment by their employer.
At issue was an employee complaining about her supervisor on her Facebook wall, which solicited feedback from other co-workers. While the employer fired the person who originally posted the complaint to Facebook, the NLRB ruled yesterday that the employee should not have been fired.
The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.
Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
This is a big step forward for workers, who don’t necessarily have to fear being fired for discussing their work on Facebook with coworkers on their own time. But the key phrase here is “with coworkers” – there may be a danger of an employer taking disciplinary action if an employee takes to Facebook about their work, but doesn’t involve coworkers in the discussion.
The labor board said that her comments “drew supportive responses from her co-workers” and led to further negative comments about the supervisor. Mr. Kreisberg said: “You’re allowed to talk about your supervisor with your co-workers. You’re allowed to communicate the concerns and criticisms you have. The only difference in this case is she did it on Facebook and did it on her own time and her own computer.”
An administrative law judge is scheduled to begin hearing the case on Jan. 25. Marshall B. Babson, a member of the National Labor Relations Board in the 1980s, said a broad company rule that says one cannot make disparaging comments about supervisors is clearly illegal under labor law. But he said an employee’s criticizing a company or supervisor on Facebook was not necessarily protected activity.
“There will arguably be cases where it is not concerted activity,” Mr. Babson said, suggesting that if a worker lashed out in a post against a supervisor but was not communicating with co-workers, that type of comment might not be protected.
If the Facebook conversation involves several co-workers, however, it is far more likely to be viewed as “concerted protected activity,” he said.
While this is a step forward for employees’ digital rights, there’s much ground to be made up. The NLRB still allows employers to ban employees from using office email to discuss union activity. But having Facebook discussions as protected speech is a big deal for workers’ rights.



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Great post and great news, Michael. FB’ed and Tweeted!
Thanks for this report Michael
Score one for the good guys! Now we’re only down by a couple trillion points or so.
Not so fast skippy, this one isn’t that simple. Employers who institute social media policies have every right to discipline employees who violate them. I suspect this one isn’t quite like you are spinning it. Employees do not have a right, nor should they, to disparage a company or its employees online.
As for using company email to discuss unions – are you serious? Why should a company allow an employee to use company email to do so? Get a gmail account.
Thanks, Michael. I was wondering if the NLRB and FLRA would improve much under Obama. Under Bush, they simply dismissed ULPs, many of which had merit – part of the concept of only enforcing laws they liked. It seems we did get better regulatory actions from Obama.
I just knew that having a Democratic majority somewhere doing anything would be good for something. I just knew it.
As a former member of the Democrats’ base for nearly 20 years and as a witness to Democrats’ failures over the last 2 years, let me just say that Democrats suck. They’re going to spend the next 2 years telling us everything they can get done if we all work hard to get them elected in 2012. Because there’s next to no difference between Democrats and Republicans in practice, I could care less if Republicans are in power. All that matters is cleaning out the Democratic Party of corporatist sellouts or, if that proves impossible, supporting a progressive candidate who will get significant coverage and a decent amount of the vote.
Great news about this small victory for employees’ digital rights, btw.
Can you elaborate there? What law prohibits me from saying “I don’t like my boss, he’s an ass” on facebook?
This viewpoint assumes that unions are bad for the health of a company. One could argue that unions breed loyalty, stability, and growth for the larger economy, therefore the company.
I think the distinction VORE is making is between the law and a company’s policies. No law prohibits you from saying your boss is an ass, but the company you work for might prohibit it as a matter of policy. The difference here might also be between writing something that’s open to the public (the equivalent of shouting it in the public square, perhaps) and writing something that only fellow employees can see.
You got the score about right.
But this decision is still nice to see.
I see. I still would question the legality of a company policy that would prohibit me from publicly telling someone that I think my boss is an ass. On my own time, aren’t I allowed to express my opinions of they aren’t damaging to anyone else?
I’m not a lawyer, so this is all just speculation on my part.
Any of the fabulous legal eagles here at the lake want to fill me in?
WRT your company, you have almost no rights. In general, it can fire you for no cause whatsoever. The constitution applies only to what rights (bwahahahahaha) you have vis-a-vis the gubbmint.
There has been some labor law granting a few rights to employees, but they have generally been gutted during R admins, congresses & courts.
Here’s a “good” book on the subject; good in the sense that it ‘splains what a slave you are, NOT in the sense of good news.
Yes. But your company might see it as damaging to its business. You can’t be fined for it or jailed for it, but you might get fired for it. Another example would be dress codes. Many companies prohibit certain types of apparel. You have to follow their dress code if you want to work for them. Of course, they can’t create policies that are illegal (they can’t create a policy making it ok to sexually harass someone) or require you to do anything illegal.
I’m not one of the legal eagles, but I think that’s about right.
We may have the right to say what we want, but employers also have the right to fire us for it. Part of it sucks, but part of it simply must be.
It’s probably safe to say that a boss wouldn’t like being called an ass, and a boss could easily make the case that such an opinion is not condusive to a productive business environment. Thus, the boss could fire the employee for it, even though the employee is perfectly free to say it.
I take this lesson: When dissin’ the boss, do it quietly, and in a way that doesn’t leave an electronic trail. Every e-mail and blog post can, and probably will, be used against us in the future, so type wisely. That’s the part the sucks.
The pinhead in Michigan who was fired for his hateful blog is a good example, as is the hateful Facebook ranting of the guy in Arkansas. In both cases, you would think that even assholes like them would know better than to type such stupidity so publicly.
I don’t mean to equate what they wrote to what KrisAinCA is talking about, but it’s an example of the need to be careful.
Knox & STC,
Everything you post online will be used against you. And it lasts forever. Poster beware.
Chances are, if you post at FDL in your actual name, you’ll never get any job you might apply for.
Thanks for the answers, all. I especially appreciate the dress code example.
I still feel however, that I couldn’t be fired for telling someone I think my boss is an ass, outside of the workplace.
I CAN be fired for no reason, as I live in an at will employment state. But if my company were to list officially me calling boss-man an ass as the reason for dismissal, I think I’d having pretty good legal standing for a civil suit.
Again, I’m not a lawyer. But that’s how I interpret the current law.
And just for the record, my boss is a great guy. I like my supervisor, too =D
Your corp doesn’t have to give a reason for you’re dismissal, and if they’re smart, never would. So you would have NO recourse.
Pretty much what I said @16. Thanks for summing it up, though.
Complete transcript of the book salon with the author is here: “FDL Book Salon Welcomes Lewis Maltby, Can They Do That? Retaking Our Fundamental Rights in the Workplace“
I dont see where any position was taken about “using company email to discuss union activity”. just looks like that was mentioned for reference. or did you know that and just wanted to throw in a strawman distraction?
reason # 337,928,226 in the list of reasons, as to why American capitalism should abolished.
“We may have the right to say what we want, but employers also have the right to fire us for it. Part of it sucks, but part of it simply must be.”
actually its mentioned that in any normal situation “water cooler”, her speech was “clearly protected”. I think the loophole they are looking for is a claim that she published some complaint (like writing abook about your asshole boss is suppose)
do employers use private, non-business email accounts to discuss anti-union activities?