Certain speech about work is considered protected activity

Believe it or not, talking about your job on social media may actually be a protected activity under federal law.

But before you jump on your Facebook account and start complaining about your boss, there are a few things you should know.

Let’s take a look at how your social media posts may – or may not    be protected by the National Labor Relations Act (NLRA).

What is Protected Speech?

The NLRA is best known as the federal law that protects union workers. However, many people may not be aware that the NLRA offers protections to non-union, private-sector employees as well.

Specifically, the NLRA protects both union and non-union workers’ rights to engage in protected, concerted activities to address or improve working conditions.

To put it more plainly, the NLRA safeguards employees’ right to consult with each other to address compensation, safety, work environment, or other job-related issues.

What It Means in Terms of Social Media

So how does the NLRA pertain to social media?

Say a restaurant worker posts a status update complaining that he’s tired of being asked to do side work after he clocks out. The person’s coworkers’ chime in, and pretty soon the comment thread deteriorates into a long list of worker complaints. A manager gets wind of the discussion and fires the person who wrote the status update.

However, since the employee was raising an issue that pertained to working conditions, his post could generally be considered “protected speech” under the NLRA.

In one recent case, the National Labor Relations Board (NLRB), the agency that enforces the NLRA, decided that a company unlawfully fired a worker after he called his boss a profane name in a Facebook post. Even though the post included obscene references to both the supervisor’s mother and family, the worker concluded the post with “VOTE YES FOR THE UNION!!!!”

The Facebook post was written during a particularly contentious union election. It’s also important to note that profane and obscene language was regularly tolerated at that workplace. Taken in that context, the obscene references weren’t anything beyond the norm, therefore the NLRB ruled that the worker’s rights under the NLRA had been violated.

When You Can Be Fired

Now consider this scenario: A staffer has a personality conflict with her boss. One day after work she blows off some steam by writing a status update making fun of how her supervisor dresses.

Is that protected activity?

No. The difference is that, in this instance, the employee wasn’t attempting to address working conditions at all. Rather, she was just making fun of her supervisor in a public (or semi-public) forum.

What Employees Need to Know

Obviously, badmouthing the boss or a coworker can lead to a variety of unpleasant outcomes, including termination. It’s always best to think twice before disparaging anyone online – especially if it’s a coworker or supervisor.

However, it’s important to know that you can use social media to discuss and attempt to affect change in your working conditions – and the federal government offers legal protections for you to do so.

If you’ve been fired for your online activity related to work, it’s a good idea to speak with an attorney to find out what your rights are.

Email us at murphy@phillyemploymentlawyer.com, or call (267) 273-1054 for a free consultation.