In the Trenches: A slap in the Facebook

May 19, 2014
In this edition of In the Trenches, Acme wonders if employees have the right to bad-mouth the company on social media.

Jimbo was a loose cannon. He’d been working at Acme for just a few months, but they seemed like an eternity to Ralph, his manager in the company’s quality assurance department. Jimbo was belligerent. He was quick to complain about perceived slights and injustices and refused to own up to errors. One day, Jimbo let an entire batch of faulty trimethyl flubdub sail right past him, owing to a brief malfunction on the line. Luckily, the watchful eyes in the fulfillment department caught the problem before any bad product shipped. But it spooked Ralph enough that he issued a written warning and put Jimbo on a performance improvement plan.

Outraged, Jimbo took to his Facebook page to whine that night when he got home. “Acme puts out crap product and then tries to blame it on the workers,” he told his 327 friends, 23 of whom were Acme coworkers. “But why should that surprise me coming from this crap company?”

“Right, bro?” Lenny chimed in. “Acme pays like crap too.” Lenny never actually complained on the job, but he had a pathological need to be liked. And, sure enough, Jimbo “liked” his comment. That didn’t stop Lenny from showing Ralph the Facebook post the next day, after deleting his own contribution to the discourse.

Ralph was livid upon seeing the post. He could put up with Jimbo’s antics when he kept it in- house, but now he was publicly disparaging the company and the quality of product it put out. When Jimbo came in — 20 minutes late, of course — Ralph fired him on the spot. And, fearful of a repeat incident given that everyone’s on Facebook these days, Ralph also urged human resources to implement a policy that prohibits employees from bad-mouthing the company online or anywhere in public.

Weeks later, Ralph got a call from Ron Dashow, operations manager at Acme’s West Northville plant. Ron had just heard from corporate — from Ken Stickler, Acme’s general counsel, to be precise. It seems he had just received a complaint from the National Labor Relations Board saying Acme broke the law when it fired Jimbo and when it implemented a social media policy. “What the hell are they talking about?” Ralph said. “The plant isn’t even union.”

Did the NLRB send the complaint to Acme in error? Did Acme violate federal labor law?

A labor and employment analyst’s response:

Ralph is operating under the misconception that labor law doesn’t apply to nonunion employers. In fact, most employees of private companies are protected by the National Labor Relations Act (NLRA), which gives workers the right to “engage in protected, concerted activity” with their coworkers in an effort to improve their “terms and conditions” of employment. In the past few years, the NLRB has gone on the offensive to remind employees that the statute applies to union and nonunion workers alike. The Board has been very aggressive of late in investigating nonunion employers and, in particular, scrutinizing the content of their employee handbooks for provisions that might interfere with employees’ rights. Social media policies like Acme’s “nondisparagement” provision are a key target.

Was Ralph unlawfully fired in the eyes of the NLRB? That depends on whether he was fired for engaging in NLRA-protected activity. Whining on Facebook is just such an activity, according to the Board. Here, Jimbo was lamenting his fate at work and tacitly inviting his coworkers to join with him in doing so. Were Lenny genuine responding in solidarity with his coworker, Jimbo would be able to make a better case, because at that point the pair would be engaged in “concerted” action. But Acme could easily demonstrate that Lenny was decidedly not in “workers of the world, unite” mode when he commented on Jimbo’s post.

Here’s the problem for Jimbo, though. While complaining about lousy pay or “unfair labor practices” is one thing, the Board doesn’t usually look kindly upon employees who publicly disparage their employer’s product. Such conduct is frequently viewed as disloyal enough that it strips an employee of the NLRA’s protections. And that’s what Jimbo did here. So an NLRB judge might well decide that Acme had “just cause” to fire Jimbo, despite his protected activity.

On the other hand, the Board will probably see Acme’s nondisparagement clause as “overbroad,” and therefore unlawful, if it indeed prohibits employees from being openly critical of both the company, as well as its products. A provision that essentially bans employees from bad-mouthing the company at all would “reasonably tend to chill” employees from exercising their rights under the NLRA. The Act gives employees considerable latitude to speak ill of their employer, within reason, if the criticism is related to terms and conditions of employment. Acme appears to have gone too far in prohibiting all such conduct. And the prohibition likely won’t stand once the NLRB has its say.

Lisa Milam-Perez, J.D., labor and employment analyst
Wolters Kluwer Law and Business, (773) 866-3908

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