You Have a New Right To Complain About Your Job on Facebook

The law, lawyers, and the court.
Jan. 3 2013 11:29 AM

Go Ahead, Complain About Your Job on Facebook

It’s become harder to fire workers for griping online.

A blackberry phone featuring a page with the adress of the micro-blogging site Twitter website.
A National Labor Relations Board ruling says the law that protects your right to strike also protects your right to tweet

Photo by Fred Tanneau/AFP/Getty Images.

Just before Christmas, the National Labor Relations Board sided with employees on a question facing a growing number of workers: When can your Facebook posts get you fired? The NLRB’s 3-1 ruling establishes an important precedent: The New Deal-era law that protects your right to strike or picket also protects your right to tweet or comment.

The case—Hispanics United of Buffalo—started one Saturday morning in 2010. That was when domestic violence advocate Mariana Cole-Rivera took to Facebook to complain that one of her co-workers was unfairly accusing fellow employees of laziness. Several other staffers at Hispanics United of Buffalo chimed in to say they worked plenty hard already. Soon after Cole-Rivera and her co-workers returned to work, HUB fired five of them, arguing that their off-the-clock comments had violated the nonprofit’s anti-harassment policy.

In general, bosses in the United States have free rein to crack down on their employees’ speech—even if it takes place outside of work. You have more protections if you’re a public employee or a union member. And there’s another exception that applies to most workers. The 1935 National Labor Relations Act establishes workers’ right to take collective action to improve their working conditions. The stuff that’s protected is called “concerted activity,” and Cole-Rivera said her Facebook thread fell into this category. Last month, the NLRB agreed. It ordered HUB to pay back wages and let Cole-Rivera and the other fired employees come back to work.

Advertisement

As I explained in Slate in July, the most important question in this case was how precisely the NLRB would apply that “protected concerted activity” principle to posts on social media like Facebook. Past cases have established a number of factors for determining what qualifies, from how many workers were involved to whether they were trying to instigate further activism. The Chamber of Commerce was hoping that for social media, the NLRB would move the bar higher, because employers hate being embarrassed on the Internet. (Who doesn’t?)

The business lobby didn’t get its wish. Instead, the NLRB’s Democratic majority found that “Although the employees’ mode of communicating their workplace concerns might be novel … the appropriate analytical framework for resolving their discharge allegations has long been settled.” They wrote that by commenting on her Facebook post, “Cole-Rivera’s four co-workers made common cause with her,” and that “there should be no question that the activity engaged in by the five employees” fell under the labor law’s protection.

That protection is still pretty narrow—it remains the exception, not the rule. Unless you’re in a union or a public employee, your boss can still generally fire you for all kinds of reasons: for volunteering for an AIDS foundation, or putting the wrong candidate’s bumper sticker on your car, or criticizing your company on your senator’s Facebook page. But as social media plays an ever-expanding role in how we connect and communicate, the NLRB’s ruling is a gift for U.S. workers and a lump of coal for employers seeking ever-greater control over their lives.

Josh Eidelson is a contributing writer for Salon and In These Times. He worked as a union organizer for five years.

TODAY IN SLATE

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Weigel
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
  Business
Moneybox
Sept. 19 2014 6:35 PM Pabst Blue Ribbon is Being Sold to the Russians, Was So Over Anyway
  Life
Inside Higher Ed
Sept. 19 2014 1:34 PM Empty Seats, Fewer Donors? College football isn’t attracting the audience it used to.
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Medical Examiner
Sept. 19 2014 5:09 PM Did America Get Fat by Drinking Diet Soda?   A high-profile study points the finger at artificial sweeteners.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.