Article 43
Thursday, November 18, 2010
Publically Talking About Work
NLRB: Facebook Discussions Between Co-Workers are Protected Speech
By Michael Whitney
Work In Progress
November 9, 2010
This is why its nice to have a Democratic majority on the National Labor Relations Board: workers get rights. The National Labor Relations Board ruled that an employee can safely discuss work issues with their co-workers on Facebook without fearing punishment by their employer.
At issue was an employee complaining about her supervisor on her Facebook wall, which solicited feedback from other co-workers. While the employer fired the person who originally posted the complaint to Facebook, the NLRB ruled yesterday that the employee should not have been fired.
The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company in any way on Facebook or other social media sites in which they post pictures of themselves.
Lafe Solomon, the boards 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.”
This is a big step forward for workers, who don’t necessarily have to fear being fired for discussing their work on Facebook with coworkers on their own time. But the key phrase here is “with coworkers” - there may be a danger of an employer taking disciplinary action if an employee takes to Facebook about their work, but doesn’t involve coworkers in the discussion.
The labor board said that her comments “drew supportive responses from her co-workers and led to further negative comments about the supervisor.” Mr. Kreisberg said: “You’re allowed to talk about your supervisor with your co-workers. You’re allowed to communicate the concerns and criticisms you have. The only difference in this case is she did it on Facebook and did it on her own time and her own computer.”
An administrative law judge is scheduled to begin hearing the case on Jan. 25. Marshall B. Babson, a member of the National Labor Relations Board in the 1980s, said a broad company rule that says one cannot make disparaging comments about supervisors is clearly illegal under labor law. But he said an employee’s criticizing a company or supervisor on Facebook was not necessarily protected activity.
“There will arguably be cases where it is not concerted activity,” Mr. Babson said, suggesting that if a worker lashed out in a post against a supervisor but was not communicating with co-workers, that type of comment might not be protected.
“If the Facebook conversation involves several co-workers, however, it is far more likely to be viewed as concerted protected activity,” he said.
While this is a step forward for employees digital rights, thereҒs much ground to be made up. The NLRB still allows employers to ban employees from using office email to discuss union activity. But having Facebook discussions as protected speech is a big deal for workers rights.
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