When Can Your Facebook Status Get You Fired?

Julian Gonzalez August 4, 2014

Discussing work on Facebook is often considered protected speech—but not always. (Karawho / Flickr / Creative Commons).

Work­ers are using Face­book to talk to each oth­er about what hap­pens on the job and in the union, and some are even using it to orga­nize for change.

Wal­mart work­ers trade advice and sto­ries on the Orga­ni­za­tion Unit­ed for Respect” page, which has 47,000 likes.” Boe­ing Machin­ists opposed to a pro­posed con­tract linked up through Rosie’s Machin­ists 751.” And many union reform­ers set up Face­book pages when they are run­ning for office.

Those are the suc­cess sto­ries. But if you read the tabloids, you’ve prob­a­bly seen some hor­ror sto­ries, too: teach­ers fired for Face­book posts that crit­i­cize their stu­dents, restau­rant work­ers fired for posts that insult low-tip­ping customers.

Here we’ll exam­ine the do’s and don’ts by look­ing at two cas­es where posts were legal­ly pro­tect­ed — and one where they weren’t.

The NLRA

If you work in the pri­vate sec­tor, the most impor­tant sources of rights in this con­text are the Nation­al Labor Rela­tions Act and your union con­tract, if you have one.

The NLRA is a fed­er­al law that cov­ers most pri­vate sec­tor work­ers. It doesn’t cov­er agri­cul­tur­al work­ers, inde­pen­dent con­trac­tors, or super­vi­sors. Air­line and rail­road work­ers are cov­ered by a sep­a­rate, sim­i­lar law.

The NLRA pro­tects your right to engage in con­cert­ed activ­i­ties for the pur­pose of col­lec­tive bar­gain­ing or oth­er mutu­al aid or pro­tec­tion” — in oth­er words, to orga­nize with your co-work­ers for improve­ments on the job. You have these rights whether or not there’s a union at your workplace.

The NLRA pro­tects your right to com­mu­ni­cate online with your co-work­ers about work­ing con­di­tions, and to not be dis­ci­plined or fired for doing it.

In recent years the Nation­al Labor Rela­tions Board has con­sid­ered cas­es involv­ing employ­ees dis­ci­plined or fired for what they post on the Inter­net. Usu­al­ly, it’s Face­book. But the same basic rules would apply for tweets, blogs, or oth­er social media.

Most of these cas­es involve employ­ees who don’t have a union. Union mem­bers have even more rights. But these deci­sions show what the cur­rent bot­tom line” is regard­ing what a work­er — union or non-union — can safe­ly post on Facebook.

My fel­low co-workers …’

Inter­net con­ver­sa­tions between co-work­ers get the same pro­tec­tions as do face-to-face con­ver­sa­tions about wages, hours, and work­ing conditions.

One case involved five work­ers at a non-prof­it orga­ni­za­tion in Buf­fa­lo who were fired for a con­ver­sa­tion they had on Face­book. It start­ed when one co-work­er texted anoth­er, threat­en­ing to tell the boss that peo­ple weren’t work­ing hard enough.

The per­son who got the text then wrote on Face­book: Lydia Cruz, a cowork­er, feels that we don’t help our clients enough… I about had it! My fel­low cowork­ers how do u feel?” Four work­ers post­ed respons­es, defend­ing the work they were doing. The five were fired for bul­ly­ing and harassment.”

The NLRB found that this Face­book con­ver­sa­tion was pro­tect­ed con­cert­ed activ­i­ty” because one of the women had raised a work­place com­plaint and the oth­ers had respond­ed with their own protests. This was a first step towards tak­ing group action,” and it was legal­ly protected.

The five were ordered rein­stat­ed with back pay.

Work­ing conditions

In anoth­er case, three work­ers at a San Fran­cis­co cloth­ing store were fired for crit­i­ciz­ing their man­ag­er. They were upset that she had ignored their con­cerns about work­ing late in an unsafe neighborhood.

The ini­tial Face­book post includ­ed these com­ments: It is pret­ty obvi­ous that my man­ag­er is as imma­ture as a per­son can be and she proved that this evening even more so…The way she treats us is NOT OK…”

Two co-work­ers post­ed respons­es express­ing sup­port. One wrote that she was going to bring a legal rights book to work. All three were fired.

The NLRB found that these post­ings were legal­ly pro­tect­ed because the com­plaints were relat­ed to the supervisor’s refusal to address safe­ty con­cerns. The employ­er was ordered to rein­state the work­ers with back pay.

Don’t just vent

Com­pare these cas­es to one where it was found to be legal to fire a work­er for some­thing post­ed on Facebook.

That case involved a BMW sales­man who post­ed a pic­ture of an acci­dent that hap­pened on a test dri­ve involv­ing anoth­er sales­per­son. The cus­tomer had dri­ven the car into a lake.

The employ­ee post­ed a pic­ture of the acci­dent with the cap­tion, This is your car: This is your car on drugs.”

The NLRB called this post­ing not pro­tect­ed because no co-work­ers were involved in the con­ver­sa­tion and the post­ing didn’t have any­thing to do with work­place issues.

Tak­ing it to the limit

Prac­ti­cal­ly all union con­tracts, whether pri­vate or pub­lic sec­tor, have a just cause” pro­vi­sion that says the employ­er can­not dis­ci­pline or fire you with­out a good rea­son that it can prove.

That makes it hard­er for your employ­er to dis­ci­pline you for some­thing that you post online — but there are still lim­its. Don’t pub­licly crit­i­cize your employer’s prod­uct, ser­vice, or cus­tomers. Your employ­er could accuse you of dis­par­age­ment or dis­loy­al­ty, espe­cial­ly if your crit­i­cism is not relat­ed in some way to work­ing conditions.

For instance, a union mem­ber was fired for anony­mous­ly post­ing neg­a­tive com­ments on an investors’ bul­letin board, say­ing things like, Don’t invest in this com­pa­ny. I work there and it is going down­hill.” An arbi­tra­tor upheld the termination.

A final pointer

It’s a safe bet that your employ­er will even­tu­al­ly see any­thing you post on online.

So use com­mon sense. Think twice before post­ing pic­tures from your hunt­ing trip if you called in sick. Don’t post pic­tures of Grumpy Cat when you are on the clock. But do use the Inter­net as a tool to com­mu­ni­cate with and orga­nize your co-workers.

Reprint­ed with per­mis­sion from Labor­No­tes.

Julian Gon­za­lez is an attor­ney with Lewis, Clifton & Niko­laidis in New York City.
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