Employment Law Report

Picture this: as a manager, you are friends with a few employees from work on Facebook. You are scrolling through your page one night when you see an employee’s post criticizing you and other members of management. The post calls you a jerk (or insert word of your choosing) and states you are profiting from mandatory overtime instead of protecting workers who are falling asleep on the job. You take a screenshot of the post and email it to the Human Resources Department. The next day, the employee who posted the criticism is fired.

Problem solved? Not exactly.

Under the National Labor Relations Act, this employee’s statement may be protected by federal law. Whether your company is unionized is not relevant to this fact. The NLRA protects unionized and non-unionized employees who engage in protected concerted activity.  This protection may extend to rude, unprofessional, and disrespectful speech and profanity if the employee is engaged in conduct or the conduct is related to concerted protected activity.

 So, what is concerted protected activity?

Two or more employees (or even one employee acting on behalf of others) who join together to improve working conditions.

Therefore, the Facebook post, while rude, is discussing issues in the workplace on behalf of other employees. Based on the context, think about how you would evaluate any of the below:

1. Employees circulate a petition for better hours
2. Employee makes a personal gripe against a supervisor
3. Employees discuss salary information amongst other employees
4. Employee is disruptive or violent during a shift and then walks off the job
5. Workers complain about the forklifts not being serviced regularly
6. Employee complains he alone doesn’t like the glass offices and the overall remodel

Odd-numbered examples are likely protected. Even-numbered examples are not likely protected.

Because the National Labor Relations Act can protect employee speech and conduct that may seem inappropriate at first glance, employers should proceed carefully before taking disciplinary action based on workplace complaints, social media posts, or other employee communications. When in doubt, consulting with experienced labor and employment counsel can help employers respond appropriately. Bricker Graydon Wyatt is available to assist in navigating this area of the law, especially for non-unionized companies for which the National Labor Relations Act may not be top of mind.