5. Saying the workplace is spooky. An employee of a mental health facility was not protected when posting comments that included these: "Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway," and, "My dear client ms 1 is cracking up at my post, I don't know if shes laughing at me, with me or at her voices, not that it matters, good to laugh." Unfortunately, her co-workers weren't her Facebook friends, so the NLRB said the exchange wasn't considered concerted activity. She also wasn't advocating any change, but was just reporting what was happening at the time. No protection. 6. Criticizing the company on an elected official's Facebook page. An employee was fired after she posted comments on Sen. Richard Lugar's Facebook page that were clearly about working conditions. They included: "The reason they contract out to us? BECAUSE WE'RE THE CHEAPEST SERVICE IN TOWN! How do we manage that? BY PAYING OUR EMPLOYEES $2 LESS THAN THE NATIONAL AVERAGE! We both make less than $10an hr. And he's worked for them 3.5 yrs! ...the fact that we're employees of a cheap contract company instead of government employees hurts us." She was complaining about her husband's and her working conditions, but the NLRB said it still wasn't concerted activity because she didn't discuss it with co-workers, or even her husband. I know what you're thinking. What about the First Amendment? Sorry, but it doesn't help these folks. The First Amendment only applies to government action, not a company's actions. It doesn't provide you any free speech protection at work unless you work for government.
Applying the law, this recent case of a waitress fired for posting, "Stupid Cops better hope I'm not their server FDP." (FDP means F*** Da Police). Granted, she had reason to be irked, since a police officer had issued a $2,500 ticket to her 3-year-old for public urination when he pulled down his pants in his own front yard. Still, this is one of those posts that probably isn't protected. On the other hand, an employee who complained about sexual harassment on Twitter and posted photos of the harassers, and who was fired because of the fact that she publicly shamed them, probably has a remedy with the NLRB, assuming that she isn't a supervisor (and possibly with the EEOC, even if she is a supervisor). It will be interesting to see what happens if she takes some legal action.