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Testing Free Speech Bounds

Employees have been blowing off steam about their jobs, probably since the beginning of time. In days gone by, people could go to the local watering hole, or gather around the water cooler to air their grievances. But these days, employees are often turning to Facebook or Twitter to complain.

But the solution to the problem is not that easy. Employers are now finding out that they can get hit with unfair labor-practice charges if they don't handle these situations properly.

The National Labor Relations Board has been very active since late 2010 in enforcing employees' rights to engage in work-related discussions on social media, according to InfoLawGroup LLP.

In a September decision, for instance, a labor board administrative law judge ruled that a nonprofit organization, Hispanics United of Buffalo, unlawfully discharged five employees for complaining about their jobs on Facebook.

The judge found that the Facebook discussion was protected because it involved a conversation among coworkers about their terms and conditions of employment, which is considered a protected activity under labor law. The judge also found that the employees had not violated any of the organization's policies or rules.

He ordered the organization to reinstate the five employees and awarded the employees back pay.

One of the key questions in these and other cases working their way through the NRLB pipeline is whether the posts can be considered protected concerted activity.

In August, the board issued a report detailing the outcome of investigations into 14 cases involving the use of social media and employers' social and general media policies. In four of the cases involving employees' use of Facebook, the board's division of advice found that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases, however, the division found the activity was not protected.

The U.S. Chamber of Commerce, meanwhile, issued its own detailed report in August on the emerging issues related to traditional labor law and employee use of social media.

In it, the Chamber says that the NRLB has reviewed more than 129 cases involving social media in some way. The Chamber report provides additional detail about some of these cases, such as the types of posts that got the employee into trouble as well as the employer's reaction.

While employers have to be careful about how they handle these situations, that does not mean that employees can simply say anything they want. Employees that simply make disparaging or unprofessional remarks may not have much protection.

As in the case where an employee, a newspaper reporter, posted unprofessional tweets to a work-related Twitter account.

Among the various alleged tweets were: "You stay homicidal, Tucson, See Star Net for the bloody deeds." And "What?!?!? No overnight homicide? ? You're slacking Tuscon."

He was warned about his behavior and later discharged. The National Labor Relations Board's division of advice concluded that the employer did not violate labor law in firing him.

PATRICIA VOWINKEL has worked for national media outlets for more than 20 years. She can be reached at riskletters@lrp.com.

November 1, 2011

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