Employers Are Not Free to “Dis-Like”

Have you ever ranted about your job in a public post on Facebook? Although it’s not the wisest thing to do, it happens nonetheless.  And recently, a judge from the National Labor Relations Board said that Facebook postings can be protected “concerted” activity in some situations.

In Hispanics United of Buffalo, Inc., five employees of a non-profit organization got into a public discussion on Facebook about criticism they had received from a co-worker who said they did not help their clients enough.  (The postings were heavily infused with the “F” word, but that’s beside the point.)  The employee who was the subject of the Facebook posts complained to management, and each of the five employees was fired.

The National Labor Relations Board filed a complaint against the employer, Hispanics United.  The judge’s decision addresses what is “protected activity”—in other words, what your employer cannot forbid you from doing.  Protected activity includes discussions about job performance, possible discrimination, discussions for the purpose of changing wages, hours, or working conditions, and activity that is for the purpose of mutual aid and protection.

The fact that these discussions took place on Facebook was not legally significant.  The judge looked at the activity rather than the medium.

This decision, however, does not mean that you’re free to switch out of that Powerpoint presentation you’re working on and rant about your job.  A very important aspect of the judge’s decision was that the Facebook posts were not made during working hours, and were not made on the employer’s computer.  If you use your employer’s computer, you may be in violation of internet/social media use policies and the result could be much different.

On a related note, we urge you to exercise great caution when using an employer’s computer.  Every communication you make through your work email, and every web page you visit, may be viewed by your employer and you should expect no privacy.  In fact, many courts have said that employees who used their work computer to email their attorneys have waived the attorney-client privilege, which can protect very sensitive communications between you and your lawyer.

Have you been denied overtime, proper wages, or any other right by your employer? If so, tell us your story—from your home computer!

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.