Peacock Tales • Fall 2013


Employees: Careful What You Say!

For film buffs, certain images are forever evocative. One such image is that of Sally Field silently holding aloft a hastily scrawled sign bearing one word: “UNION.” As anyone familiar with the film can inform you, it tells the story of Norma Rae Webster’s attempts to unionize a textile factory. In the film, Norma Rae’s efforts are met with opposition by factory management. Today, the National Labor Relations Act (Act) would most likely protect such a statement under the right of workers to self-organize. In 2013, Norma Rae’s sign might easily be replaced by a Facebook post or Tweet and the Act would likely protect her post for the same reason.

Pennsylvania is an at-will employment state, meaning that employment generally may be terminated at any time, by either the employer or the employee, without cause unless prohibited by contract, public policy or a statute such as the Act.

The National Labor Relations Board (NLRB) has concluded that an employee cannot be fired for a post when it is made in concert with other employees and made for the purposes of mutual aid or protection. The post can reference either past or future action. A post that invites other employees to comment on company policy could be protected, as could a post that furthers a past discussion regarding workplace matters. In one instance a car salesperson criticized a sales event to other coworkers and later posted pictures of the event and further criticized it on Facebook. Since the salesperson began the conversation with other employees and the event was related to the salesperson’s ability to make a living, the posts were protected.

In another case, an employee used Facebook to respond to a coworker’s allegations that a work program did not do enough for its intended beneficiaries. The employee wrote, “a coworker feels that we don’t help our clients enough . . . I about had it! My fellow co-workers how do you feel?” Both this post and the responses were found to be protected by the NLRB.

While the NLRB has cautioned employers to avoid distributing or enforcing a social media policy that has a chilling effect on collective action, an employer is not powerless in the face of employee criticism. The NLRB has found that particularly harsh rants can lose their protection and justify firing. An employee’s post criticizing a large superstore chain stating “I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” was found by the NLRB to have no link to any organized activity, but was, rather, an individual gripe. In another example, a bartender criticized the employer’s tip sharing policy on Facebook. The bartender had a conversation with a coworker a few months earlier, but neither the post nor the conversation was found to be linked to past or future collective action and was not protected.

An employee itching to try out a new Twitter handle has to remember that the Act’s protection may not extend beyond the post and an employee may still be terminated for other legitimate reasons. While an employee’s criticism of his employer online may not lead to automatic termination, the criticism is only protected if it is related to a legitimate labor issue and done in concert with other employees. As usual the best advice is: “when in doubt, don’t post.”

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