Labor Board Continues To Warn Companies Not To Fire People Based On Tweets

from the protected-activity dept

Thu, May 5th 2011 12:59am — Mike Masnick

Earlier this year, we wrote about how the National Labor Relations Board (the NLRB) had noted that a post on Facebook complaining about a boss represented "protected concerted activity" under the NLRA and thus you couldn't be fired for that. Many people in our comments simply insisted this wasn't true. However, the NLRB appears to be continuing to make this point. Thomas O'Toole draws our attention to a report on a number of recent NLRB statements and activities that again make it clear that it won't look kindly on firings over people speaking out on social networks about their workplace.

Protected Concerted Activity: In a discipline case, the Board will take a very broad view when deciding whether the employee�s social media activities constituted �protected concerted activity� under the NLRA. The Regional Director�s handout states, �It doesn�t take much to establish the concerted nature of the discussion, so long as it involved or touched upon a term or condition of employment,� and �anything short of physically threatening activity will likely be protected.�

Recent Cases: The NLRB continues to be active in the area. The handout provides four examples of recently filed complaints, or threatened complaints, involving social media in addition to the case against AMR. These cases show just how broadly the Board construes �protected concerted activity.� They involved, according to the handout, negative comments about a supervisor posted on Facebook, a posted cartoon video about a dispute between two departments, a Facebook discussion about the employer�s withholding of taxes, and a Facebook discussion about the employer�s decision to fill an open position with an outside, rather than an inside, applicant.

So it appears, yet again, that the NLRB is taking an extremely broad view on what constitutes protected activity on social networks. While I understand where the NLRB is coming from, it does seem that this viewpoint is excessive. It may be (and likely is) silly for most companies to fire an employee for venting about their job on Facebook or Twitter, but should it really be illegal? I recognize all too well how much effort went into making sure that employees had the ability to be protected for "concerted activity." The idea was to stop companies from firing people for gathering together to stand up for their rights. But should that really extend to situations involving people bitching about their bosses? Again, it might not be smart for companies to fire people who do that... but should it be against the law?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: nlra, nlrb, protected concerted activity, social media
Companies: facebook, twitter

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

TechnoMage (profile), 5 May 2011 @ 1:58am

So What should be the options?
Whats the options? I can only see two possibilities, because with the way Corporate America operates now a days... If it isn't illegal they do it, even then... but I digress...

What we would have if this wasn't illegal:

If your EVER speak out against anything your company does, or ever imply in ANY way that you aren't the happiest person ever at their job, that the company should be LEGALLY allowed to fire you?
[ link to this | view in chronology ]
- Matt (profile), 5 May 2011 @ 5:24am
  
  Re: So What should be the options?
  Let's take a broader look
  
  Do you believe people should be able to associate with whomever they like or should the government tell you who can or can't be a friend or acquaintance?
  
  Hopefully you answer that with you should be able to pick your friends. Let's take it a bit further, suppose your car is broken down and one of your friends is a mechanic. If you offer to pay him to help you fix it does that mean that the government is now allowed to prevent you from breaking off the friendship just because you paid him for labor?
  [ link to this | view in chronology ]
  - David (profile), 5 May 2011 @ 6:55am
    
    Re: Re: So What should be the options?
    Huh?
    [ link to this | view in chronology ]
    - Matt (profile), 5 May 2011 @ 7:30am
      
      Re: Re: Re: So What should be the options?
      It's all about free association, working for someone is no different.
      
      It would be ridiculous to have the government choose our friends for us it's no less ridiculous to have them regulate who people can hire or work for.
      [ link to this | view in chronology ]
      - MrWilson, 5 May 2011 @ 9:15am
        
        Re: Re: Re: Re: So What should be the options?
        It doesn't seem like you're talking about the actual issue.
        
        This is about whether or not it should be illegal for companies to fire employees for what they say on social networks.
        
        Even if that were illegal, it would have nothing to do with having "the government...regulate who people can hire or work for."
        
        This is about protecting current employees, not about hiring practices.
        
        Your example about the mechanic/friend makes no sense. Paying for someone's services is not the same as hiring them and, once again, this has nothing to do with hiring practices, and even if it did, the government wouldn't be capable of passing a law that could regulate with whom you could associate regardless of business relationships or employment.
        [ link to this | view in chronology ]
        
        btr1701 (profile), 6 May 2011 @ 6:21pm
        
        Re: Re: Re: Re: Re: So What should be the options?
        > This is about whether or not it should be illegal for
        > companies to fire employees for what they say on social
        > networks.
        
        If they can fire you for mouthing off and saying the same thing to them in person, why does the social network suddenly change things?
        
        Once again, this peculiar notion arises that for some reason the normal rules all go out the window once "on the internet" enters into the equation.
        [ link to this | view in chronology ]
  - Gnosti, 5 May 2011 @ 2:06pm
    
    Re: Re: So What should be the options?
    That depends, does the mechanic make you sign a non-compete?
    
    I think that trying to equate a one time service with a mechanic with a corporations ability to fire someone based upon criticism of the corporations actions is a bit narrow minded not broad.
    
    For one, a mechanic is an employee of the corporation/shop for which she or he works for. which is in turn employed by the consumer for the labor in which mechanic provides. Even if the mechanic owns the shop, this is still the case.
    
    The consumer has a right to pick and choose what company gets their business as he or she pleases, and should the mechanic not perform his/her duty satisfactorily, both the company and the consumer have a right to utilize a different source of labor.
    
    However, if the mechanic is unhappy with the way the shop of which they are employed is run and vents her/his frustrations to a social media outlet but otherwise does the work for which he/she is under contract to perform, The company has no legal footing in which to fire said employee.
    (Except for 'Right to Work' states such as Texas where the company can fire you for no reason at all. But that a different debate altogether)
    
    They should instead seek to hear the employees grievances and work with the employee to remedy them in order to create a happier workforce and thus a happier consumer base. As happy workers tend be harder workers and harder workers generally make for happier customers.
    
    I think the situation should be seen more in the following light.
    
    I think it would be difficult if not impossible to deny that our government is now under a decent bit of control from corporations. They have used the powers of government to push corporate agenda even at the detriment of the consumer and environment. It can only be concluded that with each passing day our government becomes more and more of a proxy for corporate rule. However unlike our government, corporations are not necessarily beholden to the constitution or The Bill of Rights. If our government is to continue down this path of becoming (IMHO) more and more of a puppet to corporate interests then shouldn't we strive to make those corporations beholden to the same documents which guarantee our civil liberties while we still have time do to so?
    Otherwise, as our government becomes more marginalized by the corporate agenda, so to will our civil liberties. That is, unless we can begin to create laws to keep that from happening.
    
    Just my two cents worth.
    [ link to this | view in chronology ]
EE, 5 May 2011 @ 2:22am

Absolutely. Unpleasant things in the workplace can be illegal. What is the real difference between "I don't like my boss" and "I don't like my boss because he sexually harasses me". Both comments could be describing the same situation but in one the context is made clear and in the other it is not. Now, what if HR sees a problem brewing and decides it is time to fire you. HR isn't going to tell you that you're fired because of a comment that mentions sexual harassment. It will find a pretext. It will say it fired you because of the comment about not liking to work late, possibly due to your sexually harassing boss, but no context was provided so they can get away with it.

If you don't think this is how things work, you are naive.
[ link to this | view in chronology ]
- Christopher (profile), 5 May 2011 @ 10:52am
  
  Re:
  Agreed. The fact is that it should be illegal for ANYONE to be fired simply because they complain about their workplace or because someone related to them complains about their workplace.
  
  Yes, I have heard of people being threatened with being fired because their CHILDREN post comments from their parents about the craptacular working conditions at their parents workplaces, coming from listening to their parents vent about it at home.
  [ link to this | view in chronology ]
Michael Kohne, 5 May 2011 @ 4:20am

Sorry but yes, it needs to be illegal
Without tying a company's hands on the matter, you'll have all kinds of abuses covered up by pretending that the firing was to do with something outside of work, not with the underlying actual problem.

While I'd like to give a business more leeway, I think that we've seen that they'll use that leeway to abuse the workforce.

I think the NLRB has the right of it here.
[ link to this | view in chronology ]
- Christopher (profile), 5 May 2011 @ 10:54am
  
  Re: Sorry but yes, it needs to be illegal
  I don't want to give businesses more leeway. The fact is that if someone is doing their job as well or better than everyone else, the business should NOT have the right to fire them just because they point out that the people in the business are overworked, that they don't have the correct equipment, etc.
  
  Sometimes, SHAMING a business is the only way to get them to change their tune.... without the right to vent online and do that shaming, a lot of businesses will try to get away with metaphorical murder.... and sometimes LITERAL murder.
  [ link to this | view in chronology ]
Anonymous Coward, 5 May 2011 @ 4:58am

I can sorta see both sides of the issue here. On the one end, job security is not really the governments job. On the other end, if corporations are allowed to fire someone for saying something that they disagree with (ie: say if someone criticized patents and the corporations don't like that) it can severely hinder free speech. Everyone simply turns into a corporate puppet afraid to ever say anything critical of our system of corporations in fear of getting fired and not ever being able to find a similar job elsewhere in the future because no one else will hire you after expressing such criticisms.

I guess my view is more broad. Corporations often benefit from government imposed monopolies. This reduces competition. This reduced competition gives those seeking employment fewer potential employers to choose from and those who they can choose from are more likely to be monopolists that benefit from monopoly power and so they may think alike. So, in that sense, I don't mind some regulations against their behavior. I don't like the idea that the government cans ever simply hand anyone an unregulated monopoly. If you want free market capitalism, then you don't get a govt granted monopoly. If you want a govt granted monopoly, then you get stricter regulations on your behavior, and that includes stricter rules about the products that you offer (ie: rules that you may not like but that benefit consumers), stricter rules about how you treat your employees, and stricter govt imposed audits to ensure that the cost of R&D justifies the cost of your product (ie: especially when it comes to pharmaceutical corporations, who are always afraid to allow the government to send independent auditors to audit their costs). But to get a govt imposed monopoly and the ability to do what you want allows you to more easily mistreat your employees and rip off your customers (since they have fewer competitors to go to). If you want to force society to respect your govt imposed monopoly then you must allow society the ability to ensure that those monopolies are justified (allow it to audit your info and ensure the costs of developing x justify the price). If you want free market capitalism, then you don't get any govt imposed monopolies. But you can't have it both ways.
[ link to this | view in chronology ]
- Anonymous Coward, 5 May 2011 @ 5:00am
  
  Re:
  that benefit from govt imposed monopoly power *
  [ link to this | view in chronology ]
- Anonymous Coward, 5 May 2011 @ 5:02am
  
  Re:
  I don't like the idea that the government can ever simply hand anyone an unregulated monopoly. *
  [ link to this | view in chronology ]
- Ron Rezendes (profile), 5 May 2011 @ 9:52am
  
  Re:
  Very well put - I whole heartedly agree with your sentiment!
  [ link to this | view in chronology ]
- Ron Rezendes (profile), 5 May 2011 @ 9:52am
  
  Re:
  Very well put - I whole heartedly agree with your sentiment!
  [ link to this | view in chronology ]
Designerfx (profile), 5 May 2011 @ 5:40am

answer is yes, absolutely
The issue here is that if they don't prevent people from being able to be fired over what consists of "complaining about their boss", etc, it becomes a very slippery slope of loosely defined terms.

What consists of bitching? do they consider "ugh rough day today" equivalent to bitching about their bosses? It's entirely possible.
[ link to this | view in chronology ]
Jon Renaut (profile), 5 May 2011 @ 6:14am

Note: This only applies to unionized labor
It should be noted that the NLRB only handles cases where there is a union - employers can still fire non-union employees for just about anything they want, including things said on Facebook. I think the laws on that sort of thing vary by state, but I also think most states set a pretty low bar.
[ link to this | view in chronology ]
Jon B. (profile), 5 May 2011 @ 6:17am

Of course he's one of the best selling authors ever... he's sold brazilians!
[ link to this | view in chronology ]
Anonymous Coward, 5 May 2011 @ 6:25am

What EE said is exactly correct. If a company wants to fire someone, they will use the safest reason no matter how insignificant.
[ link to this | view in chronology ]
- Anonymous Coward, 5 May 2011 @ 6:52am
  
  Response to: Anonymous Coward on May 5th, 2011 @ 6:25am
  However, labor lawyers are pretty good about ferreting out the real reason and raise a big stink.
  [ link to this | view in chronology ]
  - Christopher (profile), 5 May 2011 @ 11:00am
    
    Re: Response to: Anonymous Coward on May 5th, 2011 @ 6:25am
    When people can AFFORD to use them, yes.... however, most people think that it is expensive as crap (it is) and not worth it to make a stink.
    [ link to this | view in chronology ]
Josh in CharlotteNC (profile), 5 May 2011 @ 6:53am

Where's the line?
The idea was to stop companies from firing people for gathering together to stand up for their rights. But should that really extend to situations involving people bitching about their bosses?

So where is the line between complaining about your boss on Facebook and forming a group on Facebook to complaining about management of your employer?

If there is a distinction, its fuzzy enough that the NLRB is justified in taking the stance they did.
[ link to this | view in chronology ]
Jesse (profile), 5 May 2011 @ 7:16am

It seems to me it's less about being against the law, and more about what kind of damages you are liable for as an employer. An employer can fire whoever they like, but if they are going to fire someone without just cause, then they should be liable for appropriate damages (i.e. severance).

With the exception of temp work, entering an agreement of employment is like an implied contract. To end that agreement abruptly without reasonable justification, on either side, can happen but there should be some compensation for the breach of "contract."

That's [roughly] how is works up here in BC. Employees, too, have to give reasonable notice before quitting or else be liable for damages.

I think the reason why people expect perfect loyalty from employees is a holdover from the feudal days of our history. I think it's time we move away from that mentality.
[ link to this | view in chronology ]
Bengie, 5 May 2011 @ 7:19am

New law
We need a new Federal law that says you cannot be fired for anything you say or do outside of work so long as it is true and/or doesn't violate trade secrets and isn't illegal.
[ link to this | view in chronology ]
Overcast (profile), 5 May 2011 @ 7:43am

This is why I wouldn't use my real name here...

I'm not too extreme, but still. I do little, if anything with Facebook.
[ link to this | view in chronology ]
JC, 5 May 2011 @ 7:55am

It's my firmly held belief that the government has no right to tell any company who they must employ.
[ link to this | view in chronology ]
- Chris Rhodes (profile), 5 May 2011 @ 8:34am
  
  Re:
  This. Completely and totally.
  [ link to this | view in chronology ]
- Anonymous a-hole, 5 May 2011 @ 8:42am
  
  Re:
  So, if you file a (true) sexual harassment lawsuit against a senior manager, the company has a right to fire you for this?
  
  That's some fucked up thinking there.
  [ link to this | view in chronology ]
  - Squirrel Brains (profile), 5 May 2011 @ 10:05am
    
    Re: Re:
    The answer could be to create a private cause of action that allows a former employee to sue in instances of retaliation and retaliation. The employer doesn't have to keep someone one the job, but if they are discriminatory, retaliatory, or arbitrary (in the legal sense), they will have to pay for that action.
    [ link to this | view in chronology ]
  - JC, 5 May 2011 @ 5:29pm
    
    Re: Re:
    Where in the US constitution is the government granted the power to regulate a citizen's hiring and employment practices?
    [ link to this | view in chronology ]
    - Squirrel Brains (profile), 6 May 2011 @ 8:11am
      
      Re: Re: Re:
      Commerce Clause. If you participate within interstate commerce, Congress can regulate you. That is what the Supreme Court has said for about 70 years now (though there has been a tad bit of push back in the last few years). What is interstate commerce is very broad.
      [ link to this | view in chronology ]
Chris in Utah (profile), 5 May 2011 @ 8:13am

The gears are turning. A few questions.

What do we call it when any body restricts the speech of someone else?

Are there laws for this?

When are the criminally liable?

When is the government liable!?!

Is there a simple way solve this rather than relying on the time involved with relevant cases?

... tell me no lies.
[ link to this | view in chronology ]
Anonymous Coward, 5 May 2011 @ 9:10am

There is a thing called Employee Code of Conduct
Most (if not all) companies have an employee code of conduct agreement (or something similar) that employees sign off on when they're hired. If you violate it, then you're subject to discipline as prescribed in that agreement. If that agreement includes termination, then it's all good and legal.

People, before you post stupid shit or vent on the web, review your company's employee code of conduct first. Ignorance might be bliss, but it doesn't necessarily protect or preclude you from being disciplined or fired.
[ link to this | view in chronology ]
Ron Rezendes (profile), 5 May 2011 @ 10:02am

Of course in California....
Employees are at-will employees and unless your employment is contracted (specific terms and often length of service) you can be fired at any time for any reason or NO REASON at all!!

The "balance" side of this awkward situation is that the employer is responsible for paying for your unemployment benefits if the reason you were fired was not any mis-doing on your part.

For example:
Company X: We fired Jon because we just don't like the guy.
State of Ca.: That's fine, here's the bill for his unemployment benefits.

Company X: We fired Jon because he was always late to work and he stole company property.
State of Ca.: That's fine. By the way Jon, you won't be receiving any unemployment benefits!
[ link to this | view in chronology ]
Jesse Townley (profile), 5 May 2011 @ 11:17am

Good!
This is an excellent stand that the NLRB is taking.

It is in line with the purported overarching theory of discipline in the workplace: employees should be judged on their performance of their specific job, not whether they're a particular race, if they have big boobs, if they bitch about the boss outside of work, etc.

Discipline/terminate someone based on their job performance, not on their personal opinions. The slippery slope here is obvious and I'm actually kind of surprised that Mike & others aren't 100% behind this.

You learn something new every day!
[ link to this | view in chronology ]
btr1701 (profile), 6 May 2011 @ 6:24pm

NLRB
> It may be (and likely is) silly for most companies to fire an
> employee for venting about their job on Facebook or Twitter,
> but should it really be illegal?

Mike, this only applies to unionized employees. The NLRB policies don't have any legal effect on non-union workers.

The way you wrote your article gives the impression that these rules apply to all workers everywhere.
[ link to this | view in chronology ]
toyotabedzrock (profile), 8 May 2011 @ 10:58am

Very Disappointed
You don't seem to remember that a company has an advantage which is why these laws exist. They just have been ignored since we had Corporate shill for a president until recently.
[ link to this | view in chronology ]
Jessica, 18 Jun 2011 @ 9:04pm

Shouldn't be an issue
Facebook should be your personal space and one should not be fired for what they say, it is UNCONSTITUTIONAL. Only if they are posting comments on company time should action be done. It would be the same as someone recording your conversation in your lving room and then taking it you your boss.
[ link to this | view in chronology ]
v truck driver, 9 Aug 2011 @ 7:28am

I got fired for speaking my mind
I am a female truck driver this company I was working for wanted me to lie on my log book and drive A death trap.The worst of It all my daugher got real ill when I was at work no phone service what so ever.I went to grt a load of water got the message she was ill.SO I called the boss I HAD TO WORK.He wanted me to stay passed my 14 hours I did not.He came to my home he had already left me a message that said I was fired.Itold him my family came first.Just for speaking my mind I got fired.
[ link to this | view in chronology ]
v truck driver, 9 Aug 2011 @ 7:28am

I got fired for speaking my mind
I am a female truck driver this company I was working for wanted me to lie on my log book and drive A death trap.The worst of It all my daugher got real ill when I was at work no phone service what so ever.I went to grt a load of water got the message she was ill.SO I called the boss I HAD TO WORK.He wanted me to stay passed my 14 hours I did not.He came to my home he had already left me a message that said I was fired.Itold him my family came first.Just for speaking my mind I got fired.
[ link to this | view in chronology ]