Huge news in the realm of social media: The National Labor Relations Board, an independent federal agency charged with safeguarding employees’ rights and holding employers accountable for their labor practices, has ruled that employees’ use of Facebook is legally protected free speech under many circumstances, even when it expresses negative sentiment about their employers.
The ruling came in response to the case of a medical technician named Dawnmarie Souza, who was unhappy that her supervisor would not let her get assistance from a union representative in responding to a customer’s complaint. Souza reportedly “using several vulgarities” to mock her supervisor on Facebook and compared him to a psychiatric patient; her co-workers chimed in, leading to “further negative comments about the supervisor.” While Souza did all this on her own time and on her own computer, her employer ultimately fired her over these Facebook posts; per the NLRB’s ruling, this firing was illegal.
The board compared protected speech on Facebook to water-cooler discussion around the office:
Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
While the full implications of this ruling have yet to be unpacked, one law firm specializing in labor law says that it has consequences for all private sector employees, unionized or not:
The board’s complaint prompted Morgan, Lewis & Bockius, a law firm with a large labor and employment practice representing hundreds of companies, to send a “lawflash” advisory on Monday to its clients, saying, “All private sector employers should take note,” regardless “of whether their work force is represented by a union.”
The firm added, “Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would ‘reasonably tend to chill employees’ ” in the exercise of their rights to discuss wages, working conditions and unionization.
But employees venting about their employers using social media do not have unlimited protection: As the NLRB clarified on Facebook, there are four key points to consider in determining whether Facebook comments count as “protected concerted activity status under the National Labor Relations Act.”
(1) the place of the discussion
(2) the subject matter of the discussion
(3) the nature of the employee’s outburst
(4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice