Have you ever thought about posting something on Facebook (or Twitter), then changed your mind because you know your boss or co-workers might be looking?
Unfortunately, some of us don’t stop at the thought and more often then not, something happens because of that lack of restraint. But as more and more people receive disciplinary action at work over words on the internet, the National Labor Relations Board is trying to figure out just how far businesses should be allowed to go.
Although the NLRB deals primarily with issues surrounding union elections, the board has stood out in recent months as an agency willing to grapple with the question of when firing someone over a Facebook missive is fair game.
“The NLRB is the one making big splashy decisions, and people are drawing conclusions from those,” said Tina Hsu, a lawyer specializing in employment and social media at Shulman Rogers in Potomac, Md. “They seem to be trying to discern whether private or non-work postings are having an adverse effect on the workplace. That’s a difficult or blurry line to draw.”
“It’s new territory,” said Nancy Cleeland, spokeswoman for the NLRB.
Cleeland said the agency received “several dozen” pleas from fired or otherwise punished workers in the wake of a complaint the board issued last fall in a Facebook case. Because of the inundation, board officials have asked that the NLRB’s regional offices steer any Facebook cases toward the agency’s Washington headquarters, where the general counsel is currently drafting a report that will outline certain Facebook scenarios and how the board has acted upon them.
The agency has applied that virtual water cooler argument to a handful of other Facebook cases, including that of a Chicago-area car dealership worker who was let go after criticizing his employer. The employee mocked management for serving hot dogs from Sam’s Club at an event designed to promote a luxe new BMW model. The NLRB filed a complaint in May arguing that the firing violated labor law.
But according to the board’s counsel, a worker’s sniping doesn’t always amount to protected activity.
In the Walmart case, an employee at one of the retail giant’s Oklahoma stores alighted on Facebook after an argument with an assistant manager, as reported on Labor Relations Today. “Wuck Falmart!” he wrote. “I swear if this tyranny doesn’t end in this store they are about to get a wake-up call because lots are about to quit!” His Facebook friends included several Walmart co-workers. One responded with “bahaha like! :)” and another with “Lol.”
In response to his friends’ comments, the employee called the manager a “super mega puta,” going on to say that if the situation at the store didn’t improve, then Walmart “could kiss my royal white ass!” A co-worker who saw the posting provided the boss with a printout of the exchange.
The manager prepared a written disciplinary report saying that the worker’s behavior reflected poorly upon the company and that he would be fired if it continued. The worker appealed to the NLRB, but the board’s counsel threw out the case last month, finding that the Facebook tirade was nothing more than “an expression of an individual gripe,” rather than concerted activity with other co-workers. “Mere griping,” the dismissal noted, “is not protected.”
Now, the devil’s advocate in all of us says, “Just quit gripping and whining on Facebook or in writing period. That way, no one can prove you said anything.”
But is that really fair?