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Labor Laws and Social Media

Social Media and Labor Laws

Whether through firsthand accounts or via the national news, we’ve all heard stories of someone who’s been booted from a job because they trash-talked their employer online. In today’s Internet-driven culture, it’s a pretty common occurrence, and you’d think that most in the workforce would know better. But it turns out, all negative online chatter isn’t equal. According to the federal National Labor Relations Board (NLRB), employees can’t be fired for online “concerted activity” to increase their pay, improve their working conditions or resolve other workplace problems.

Let’s look some real-world examples of “protected concerted activity.”

  • An employee had a dispute with a co-worker about job performance and the overall conditions at the nonprofit where they worked. The employee took to Facebook and asked colleagues for input on the issues they collectively faced. Several other employees chimed in offering advice, and all were subsequently fired. The NLRB found that they were engaged in protected concerted activity.
  • An employee made negative comments about a supervisor on Facebook, and several of the employee’s colleagues offered their own perspective on the supervisor. The employee who made the initial negative post had been denied union representation in responding to a customer complaint, but the NLRB found that the employee’s comments were protected concerted activity because the employees were working together to address a larger issue.

While these cases that seem like textbook “Facebook Firings,” the NLRB saw things differently because employees were working as a collective to improve their workplace. However, “personal gripes” that don’t address collective issues aren’t protected.

  • After an angry exchange with a supervisor, an employee updated her Facebook status to an expletive and the name of her employer. Several co-workers “liked” her status, and she was subsequently fired. The NLRB found that she was not engaged in protected concerted activity because she wasn’t acting on behalf of other employees or looking for ways to improve their overall working conditions.

In short, concerted activity to improve the state of the workplace is protected, while personal gripes that don’t advance a larger employee agenda are unprotected.

Let JDP help screen your organization’s candidate and employee social media. Contact us to learn more!

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