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.
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.
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