- An agency that oversees workplace rights issued a report August 18, 2011 strengthening your right to use the Internet and social media sites like Facebook and Twitter to complain about your workplace
- The legal term for online discussion among employees about their jobs is “protected concerted activity”
- Protected concerted activity is an old concept, but is one of the least-known employee rights. It is moving into the spotlight because employees now often gather and speak out online
- The new report makes clear that voicing job-related opinions and complaints online can enjoy the same legal protection as traditional, in-person forms of protest (such as rallies and picketing)
- Corporate policies forbidding employees from discussing the company or job issues online may violate the right to protected concerted activity and may be unlawful
Employees often use the Internet to talk about work. The postings sometimes involve bosses, customers, coworkers and company happenings. But employers have widely viewed these “unauthorized” online discussions to be improper, and have adopted policies making these activities a basis for termination.
Now a powerful federal agency has issued a sweeping report that comes out sharply in favor of employees, i.e., in favor of allowing employees to speak freely online about their job concerns. The agency is the National Labor Relations Board, or NLRB. And the legal term given to online discussions by employees is “protected concerted activity.”
Doesn’t exactly roll off the tongue, does it? The concept has been around a long time, but it’s becoming more useful as a shield for employees who “gather” and communicate via the Internet. And while some think the NLRB and its rules only concern unionized workplaces, that isn’t so. They govern nonunion employees too. Virtually all workplaces (in the private sector) are affected. In fact, the NLRB also just passed a rule requiring employers to post a notice of employee rights under the National Labor Relations Act in the workplace, beginning November 1, 2011.
So now you have much stronger protection to openly criticize things at work when you’re talking with coworkers on your blog, on Twitter, on Facebook, or anywhere else online, for that matter. This is true whether you’re talking about a boss who’s treating workers unfairly, or about workplace policies in general that you find objectionable.
The new NLRB findings won’t necessarily protect you for simply trash-talking a coworker. Nor will it likely protect you if you simply post a comment online calling your boss a jerk (or worse) after a tough day at work. It could, but the law is still evolving, and personally-insulting comments may still expose you to discipline or termination. But if your comments and discussions involve complaints about unfairness or problems at work of general interest to many employees at the same company, you’re more likely to have some legal protection against discipline or firing.
Some quick rules.
You’re more likely to have protection if:
- Your posting is part of a discussion or chat with other employees.
- You post a comment by yourself, but it becomes an ongoing dialogue because other employees are commenting on your post, such as in a blog.
- Your comments or postings are about specific problems at work, about unfair or illegal policies, about the general terms and conditions of employment, or about broad issues of concern in your workplace.
- Your comments are truthful and factual.
- You’re just taking shots at coworkers, bosses or customers. One bartender posted a comment calling customers “rednecks,” saying he hoped they “choke on glass as they drive home drunk.” That’s not protected.
- You’re expressing a truly individual gripe. Examples of employees who lost their jobs and found themselves without protection include (1) an employee who posted the comment “Wuck Fal-Mart,” (2) an employee who called her manager a “bitch,” and (3) an employee who worked for a mental health counseling service, who was fired for posting a comment saying it was “spooky” to “work in a mental institution.”
- You’re not talking about a common concern that other employees would share.
- You disclose confidential company trade secrets, customer lists, medical data or other protected internal information.
- You maliciously attack another person by name, or you post information about someone, or about the company, that is clearly untrue.
The NLRB position is a major advance in the rights of employees to use social media and the Internet to share complaints and concerns about their jobs. Employer policies that restrict online discussion about company matters may now interfere with these rights. Employees who speak up should recognize, though, that legitimate, group discussions are more likely to enjoy protection that an isolated comment that is intended as nothing more than a job or insult about the company, an employee or customer. But the NLRB position makes it clear that even aggressive, derogatory comments may be protected. It doesn’t have to be polite. It does need to true, and based on the facts.