Part of the NLRB's beef was that the restriction was too broad. A big reason that the NLRB found her activities protected was the fact that it resulted in comments from co-workers. If you post something just to vent and it doesn't result in a discussion with co-workers, you may not be in the same boat. Lesson learned: Encourage co-workers to comment about your post.
But wait! Before you decide to slam your employer on Facebook or Twitter, take a look at these cases where employees' firings were found to be perfectly legal:
1. A reporter complaining about a lack of homicides to cover. It wasn't the complaint, but the way he said it that got him in trouble: "What?!?!?! No overnight homicide. ... You're slacking, Tucson." Another began, "You stay homicidal, Tucson." The NLRB said the post was offensive, and was not a complaint about working conditions.
2. Mocking a neighbor. The NLRB found that firing of a BMW salesman for photos and comments posted to his Facebook page did not violate the NLRA because he was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership, which was not concerted activity and was not protected. However, the NLRB also found that comments he posted criticizing his company for serving hot dogs, chips and bottled water at a luxury car event, were protected, along with photos of it. Too bad, since the company convinced the NLRB that he was fired solely for the neighbor-mocking. The NLRB also noted that the company's social media policy was illegal. That didn't help this guy though.
3. Complaining about a tips policy. Where a bartender had a
Facebook conversation with his stepsister saying that he hadn't had a raise in five years and that he was doing the waitresses' work without
tips, he might have been OK if he had stopped there. Instead, he called his employer's customers "rednecks" and said that he hoped they choked on glass as they drove home drunk. The NLRB said that the employer didn't break the law when they fired him for his rant. The NLRB also said that, because he only complained about his own working conditions, he also didn't engage in concerted activity that was protected. Had he said that all the bartenders were doing the waitresses' work without tips (and had he not insulted the company's customers), he might have had better luck.
4. Complaining about own working conditions. An employee who posted a nasty rant wasn't protected, not because of the foul language, but because he only griped about his own working conditions, even when co-workers commented about his post. It said things like, "Wuck Falmart! I swear if this tyranny doesn't end in this store they are about to get a wakeup call because lots are about to quit!" and "You have no clue...