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NRLB says Facebook conversation about work was protected speech

The posts you find on your Facebook feed usually fit into one of a few common categories: photos of babies or food, social and political commentary, and self-promotion.

Another use of this social media site is to vent when you are feeling upset or angry. Sometimes, sharing your feelings with friends and family this way can help you put your problems in perspective and allow you to feel better.

But Facebook is not private, like an in-person conversation or an email. For instance, if you write a post complaining about your job, your employer might find out about it. Do businesses have the right to punish or even fire a worker because of what they write online?

In one narrow version of that question, it appears the answer is no. In 2012, the National Labor Relations Board ruled in favor of five people who were fired because of a conversation they had on Facebook. The NLRB, which protects union workers and public employees, found that the firings were wrongful termination.

The case started when one of the workers wrote a post about a dispute she had with a co-worker. In the post, she says the co-worker unfairly criticized her and other employees, and asked workers at her job to add their thoughts. Several colleagues did so.

Somehow, their employer found out about the Facebook conversation and fired the five people involved, accusing them of violating a workplace harassment policy.

The fired workers complained to the NLRB, which investigated and agreed they were wrongfully terminated. The board found that the Facebook posts were protected speech, under a rule that allows workers covered by the NLRB to talk about improving their working conditions. The NLRB described the online conversation as “protected concerted activity.”

This ruling, as we discussed in an article on our website, is fairly narrow, in that only unionized and public workers are covered by it. Also, a controversial post about work would have to be “protected concerted activity” to protect the poster from firing. But it is interesting to note that your employer may not be able to automatically fire you if it does not like something you wrote on social media.

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