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September 14, 2011 / Greg Cragg

Fired over Facebook Post: Protected Speech of Employees

Tales of employees fired over Facebook rants fill the Internet, but not all of these firings are legal. Last week, the National Labor Relations Board (NLRB) found in favor of five workers who were fired from the Hispanics United of Buffalo non-profit organization for complaining about a co-worker on Facebook, saying “What the f… Try doing my job. I have 5 programs,” and “Tell her to come do [my] f***ing job n c if I don’t do enough, this is just dum.” The targeted co-worker saw the post and reported the post to their supervisor. The supervisor fired the five employees for violating the company’s policy banning online harassment of co-workers.

One of the five employees who were fired filed a complaint with the NLRB, which investigates violations of the National Labor Relations Act (NLRA). The judge in the case ruled that the employees were within their rights to discuss working conditions and how to improve them, even online. The judge ordered the employees to be reinstated and paid back pay for the wrongful termination. This was the first non-union case of online speech considered by the NLRB, although a similar NLRB case was also recently decided in favor of a union employee who was fired for complaining about her boss’ handling of a customer complaint online.

The First Amendment protects free speech but is limited to protecting against interference from the federal, local, and state governments. Some types of employee speech are protected in other ways. The NLRA protects the rights of workers to unionize, engage in collective bargaining, strike, and several other protected activities. Contrary to popular expectation, the NLRA applies in part to many non-unionized businesses as well as unionized businesses.

Certain types of speech are protected under the NLRA’s section 7. This includes “concerted activities” to protect employee “mutual aid and protection.” Concerted speech activities would include speech among employees or the speech of one employee on behalf of others. Protected speech may be in the form of discussing terms of employment and working conditions. Retaliatory action against this protected speech by an employer, such as discipline or firing, is an unfair labor practice under the NLRA and allows the NLRB to take corrective action.

Not all online speech by employees is protected. Insulting speech, whether online or off, against one’s boss, co-workers, customers and clients, products, or business without a protected purpose (see above) is a common reason for employees to be fired. Some of these comments can leave the employee open to criminal or civil liability, such as defamation. Non-protected speech also includes exposing trade secrets and confidential information or harming the business’s ability to make sales.

Additionally, many states consider employees without an employment contract to be “at will,” which allows employees to quit at any time for any reason or employers to fire employees at any time for any reason, except for prohibited reasons. Prohibited reasons include illegal discrimination based on race, gender, or other categories or for engaging in protected activities, such as forming a union. Thus, an employer could not fire an employee for engaging in protected speech but could fire that employee for poor performance or attitude, whether or not the allegation is true.

In closing, here are two examples of what are probably protected and not protected employee speech (not meant to be legal advice):

Not protected: Posting pictures of yourself drawing vulgar and racist graffiti on a passed out friend.

Protected: Complaining about a coworker not doing enough work (see above case).


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