Employers and What They Can Do to Employees for Complaining on Social Media

Discharged for Facebook Comments

The National Labor Relation Board (NLRB) has protected the right of free speech of employees posting messages on social media so long as that speech is limited to discussions about "wages and working conditions ... in an effort to improve them" (Kasle). In so far as Nelson's comments on Facebook regarding her supervisor were not constructive in the sense of advocating an improved workplace environment, they are not protected by NLRB's law. Thus, Nelson's employer did have the right to terminate her employment.

When does an employer have a legal right to discipline or discharge an employee for comments the employee makes about the company? It is a controversial question. Free speech advocates might suggest that all speech is protected. However, business advocates suggest that corporations and companies have a right to protect themselves. In this context, NLRB has stipulated that all criticism of employers must be done constructively on social media, and not simply come across as venting. Such stipulation should not appease free speech advocates because it is clearly an arbitrary and politically correct way of determining that employees may not say what they think about employers on the Internet. Nonetheless, the law is clear: employers do have a legal right to discipline and/or discharge employees who violate the NLRB's statute. As Jessica Sussman points out: "Employees have the right to discuss wages, hours, working conditions on Facebook or other social networking sites with coworkers and this activity is protected ... [so long as the discussion is part of a] concerted activity for the purpose of collective bargaining or mutual aid or protection."

Were I representing the company for which Nelson worked and the NLRB regional director asked if I would be willing to settle the union's charge voluntarily, I would state that I was willing to settle the charge voluntarily rather than insist on my legal right to a formal NLRB hearing. The reason would be this: companies all too often can come across as monolithic and inhuman. In today's day and age, companies need to cultivate good employee-manager relations. When Nelson's supervisor refused to allow her time to contact her union rep, he aggravated the issue and sparked a need in Nelson to vent to her social networking peers. That is perfectly understandable. So while my company does have the legal right to terminate Nelson for criticizing her supervisors, it does not present the company as being employee-friendly. Rather than insist on legalities, I would prefer to settle the union's charge voluntarily and come to an understanding with Nelson to see if she would at least accept some form of disciplinary measure while for our part we could at least admit that her supervisor had taken a misstep by blocking her desire for contact with a union rep.

This is not to say that the company committed an unfair labor practice by (1) discharging Nelson for her Facebook postings or (2) denying Nelson an opportunity to meet with her local union representative during an investigatory meeting with her supervisor, or (3) enforcing an overly broad blogging and Internet use policy. The company does not want to admit any wrongdoing and neither does Nelson. That is all perfectly understandable. But let us look into the matter as objectively as possible.

Nelson was asserting her Weingarten Rights when she asked to meet with her union representative during the investigation (Discipline and Workplace Rights). The purpose of doing so, for Nelson's part, was to ensure that a union rep could be present to witness the investigatory process and to ask pertinent questions when necessary. This is part of employee protection against unjust persecution on the part of the employer. It is, after all, "the right of employees to have union representation at investigatory interviews," as stated by the U.S. Supreme Court in NLRB v. Weingarten, Inc. (Discipline and Workplace Rights). So why did Nelson's supervisor forbid this request? It is very likely that he did not know of the Weingarten Rights. Also, this right only applies to investigatory interviews. There is some controversy over whether Nelson's interview with her supervisor was actually an investigatory interview. After all, he merely asked her to provide a written response to the client's complaint. This was not, strictly speaking, an investigatory interview with a hint of discipline on the horizon. But Nelson judged there to be the possibility of both, which is understandable. From the supervisor's perspective, it is also understandable that he would not view it as a strict investigatory interview but rather as a request for her side of the story in writing. What is missing here is understanding, patience and consideration on both parts. If these are in place, then the legalities and need for punitive measure will fade away: there is no need for them.

Besides, the policy may be overly broad and imprecise, but it is still a policy that employees should take care to follow. Yet it is possible that just as the supervisor did not know of Weingarten Rights or consider the possibility that Nelson might believe she was in the middle of an investigatory interview, it is also possible that Nelson did not know of the NLRB's Internet policy. Therefore, consideration should be taken here. At the same time, the company should be able to protect its public image -- so discipline is not uncalled for and is in fact supported by the law so long as the language used online is not part of a constructive effort to better the workplace.

Thus, the company did not commit an unfair labor practice by discharging Nelson but it did create more trouble for itself than the incident was necessarily worth. In an effort to protect itself against bad press, the company chose to discharge its employee. But in an age of social media and a demand for more free speech, the company should have considered the fact that by discharging Nelson it could be potentially setting off a firestorm of bad press -- effectively creating a mountain out of a molehill just to prove a point.