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TheStreet Open House

Facebook Posts and Tweets That Can Get You Fired

By Donna Ballman

In a recent ruling, the National Labor Relations Board said an employer broke the law when it dismissed an employee who criticized it on Facebook and in an email, and who encouraged employees to unionize. The NLRB ordered the employer to reinstate the employee to his old job with back pay. The employee had posted comments like these on Facebook:

At OnBoard you will receive no health insurance, sick days, vacation days or one single benefit. You will ride around on unsafe buses, without the benefit of a PA system, or sometimes even a seat.

And perhaps most egregious of all of the flaws, PAYCHECKS BOUNCE, yes that's right, they bounce.

You may know that you can't be fired for encouraging co-workers to unionize. What you may not know is that you don't have to encourage co-workers to unionize or be part of a union to be protected by the National Labor Relations Act, which says:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."


The "concerted activity" provision applies whether or not the company has a union, and covers pretty much every workplace. It covers anything that non-supervisory employees of non-government employers do for mutual aid or protection. So, can you be fired for what you say on Facebook and Twitter? It depends on what you say, and who you say it with or about. Here are some examples of social media firings that the NLRB found to be illegal:

1. Calling a manager immature and saying the company founder would roll over in her grave. When employees had posted an exchange about working conditions, the NLRB found that they were fired illegally. It probably didn't hurt that the exchange ended with this:

"hey dudes it's totally cool, tomorrow I'm bringing a California Worker's Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that's going on that's in violation 8) see you tomorrow!"

Lesson learned: If you're going to rant, mention that you think they're breaking the law or something about worker's rights.



2. Complaining about a co-worker's complaint. The NLRB said that it was illegal for a nonprofit organization to fire five employees who had a Facebook discussion, complete with foul language, about a co-worker's intention to complain to management about their work performance. The company said that they were fired for harassing a co-worker for complaining, but the NLRB disagreed. Lesson learned: It's best to complain with a group of co-workers.

3. Foul rant about supervisor. In what is probably the most famous Facebook firing case, the NLRB found that an employee's rant was protected. The employee's comments included:

"looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***."
The company said that she was rude and unprofessional, and violated their internet policy. Her co-workers then weighed in with comments supporting her and with further negative comments about the supervisor. The company had a policy that prohibited: "disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors." It also prohibited employees from depicting the company in any way in social media. That's pretty broad.

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