Facebook and the NLRB – Don’t Believe Everything (Or Maybe Anything) In the Blogs

You know about this case, right?

I’m talking about the case of the Connecticut ambulance company that fired an employee after she posted negative comments about her boss. The National Labor Relations Board (NLRB) filed an action against the company maintaining that the firing was illegal; the ambulance company and the NLRB reached a settlement last week. There is so much misinformation and inaccuracy floating around the Web right now about this case that it’s ridiculous to even list or link to them all. If you insist, here, and here are a couple of offenders. Here’s why they are wrong:

1. FREE SPEECH – This case isn’t about free speech at all. Not one single, solitary sliver. The firing didn’t impact the employee’s free speech rights, and the settlement doesn’t validate any free speech rights. The case is about “protected concerted activity“, which all employees are allowed to engage in pursuant to the National Labor Relations Act (NLRA).  The law states that employees have the right to discuss wages, hours, working conditions, etc. without fear of retaliation or punishment. That is NOT constitutional free speech, but a worker right granted by statute. If these writers don’t understand the difference between the Constitution and a statute, they need to go back to high school civics.

2. UNION OR NON-UNION – The NLRA applies to all employers and employees, with some specific exceptions that are not relevant here. When articles say that non-union employers are not impacted, they are dead wrong, because ALL employees have the right to engage in protected concerted activity. It is the conversation about wages, hours, and working conditions that allow employees to make reasoned choices about unionization, which is why it is allowed by statute. At least that is the theory.

3. AT-WILL EMPLOYMENT – Employers in an “at-will” jurisdiction do not have to have a reason to terminate an employee.  BUT – they cannot terminate an employee for an illegal reason, like sexual or religious discrimination, or whistle-blowing. Commentators who say there is no impact in an at-will jurisdiction don’t understand the concept at all, and are dead wrong. Even at-will employers cannot legally fire someone for talking about their working conditions.

The issue in this case is simple: Was the employee Facebook post, and her comments in response to others, a conversation about working conditions at her place of employment? If so, it is protected concerted activity that the employer may not legally prevent or punish.

Since Facebook posts are pretty clearly an attempt to start a conversation or to encourage someone to listen to you, I don’t see why this is even questionable, unless the employee was writing about her dog or cat and not about working conditions.  The case is really no different than if the woman was standing around the coffee shop talking with her co-workers about her boss.  Facebook is just digital conversation around a virtual water cooler. This is what the NLRB wants employers to recognize.

Some bloggers want to turn it into more than this, or into something else altogether.  Don’t believe them.

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