Tuesday, November 9, 2010

When criticizing the boss makes you a protected class

Hand it to a government agency for pursuing an employee's case after she criticized her boss online.  An ambulance service in Connecticut fired an employee after she ridiculed her boss on her Facebook page.  Included in her online rant were vulgarities and a reference to the boss being a psychiatric patient.  The company allegedly fired her for depicting the company in any way on social media.  (The company claims it fired her for a variety of reasons.) 

The National Labor Relations Board ("NLRB") contends that the case is simple and straightforward.  The employee was communicating with others about working conditions.  The employee was upset her boss did not allow a union representative assist her with responding to a customer complaint.  According to the NLRB, this was concerted protected activity, protected under the National Labor Relations Act ("NLRA"). 

This should send a chill up the spine of all employers, public and private.  Employers need to review their social media policies to determine if prohibitions preclude employees from exercising their rights, under the NRLA or California law, to discuss workplace conditions.  Employers also need to examine closely whether they want to terminate an employment relationship due to an employee's online comments. 

My concern is that when employees choose to rant online, it is not necessarily to debate and to discuss working conditions in good faith, but to primarily to punish and ridicule the company.  Does this case mean that employees can say things online that they could not get away with saying to the boss directly or in a room with other employees?  I think most of us would consider such "live" ranting to be insubordinate and unprofessional.  Why should the same ranting and belittling online be protected? 

I hope this case has a positive outcome for employers.  If not, this case could signal a new era in employee relations, and unfairly prevent an employer from maintaining appropriate rules of behavior. 

The case goes to trial on January 25, 2011.

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