We’ve discussed before how social-networking data — from sites such as MySpace and Facebook — have been used to gather evidence in trials against jurors and defendants, in divorce cases, against employees (which can lead to lawsuits), applicants to colleges and graduate schools, politicians and high school students. We’ve seen it affect applicants to jobs in the United States and abroad.
Now, the Wall Street Journal discusses how employees are responding when their bosses punish them for the comments they make online on Web sites, including social-networking sites:
Since the rise of Facebook and Twitter, companies believed they had the right to fire employees who posted complaints or hostile or rude comments online about their employers.
But in recent months, workers have sought to solve their very modern employment predicament by using the law that kick-started the U.S. labor movement: the National Labor Relations Act of 1935. The law gives private-sector employees certain rights to complain about pay, safety and other working conditions. It doesn’t protect simple griping.
More than 100 employers, including a saloon, a BMW dealership and Wal-Mart Stores Inc., have been accused by workers over the last 12 months of improper activity related to social-media practices or policies, according to the National Labor Relations Board, a federal agency that enforces the law and decides whether employees’ complaints have merit. […]
The NLRB actions, most of which involve nonunion employees, represent a new arena in which the agency is asserting itself in the workplace. It already is on the hot seat with Republicans and business groups, who say it has favored unions over employers under President Barack Obama’s watch, notably when it challenged Boeing Co.’s decision to install a nonunion production line in South Carolina. […]
The cases turn on whether online postings mirror activity that is protected under the Wagner Act, as the 1935 law is also known. Passed in part to protect collective-bargaining rights, the law grants employees a right to engage in “protected concerted activity,” such as discussing pay or other conditions. Individuals can be protected if they are speaking on behalf of other workers about the workplace.
To be protected, there must be group activity, in intention or result, said NLRB Acting General Counsel Lafe Solomon. Mere complaining isn’t protected, he said.
Translating those principles to online activities isn’t easy, and the NLRB hasn’t provided specific guidance. Are postings made from workplace computers protected? The agency hasn’t seen such a case. If an employee posts a message to a group of co-workers and no one responds, is that message protected? It depends on the facts, the agency said, including what may have occurred in the workplace before or after the posting.