Monday, April 6, 2015

The NLRA protects *that* Facebook post!?

If an employee uses social media to address the terms and conditions of employment with his or her fellow co-workers, then the posts are generally protected by the National Labor Relations Act (NLRA). So, for example, if an employee posted "Vote YES for the UNION!!!!!!!" on Facebook and his Facebook friends included co-workers, then the NLRA protects that post. In other words, the employer would violate the NLRA if it fired the employee for such a post.

However, such speech can lose its protection if it is too egregious, abusive, malicious, or highly profane. [Earmuffs kids, the language is about to get "Parental Advisory"]. In Perez Pier Sixty, an employee posted the following to Facebook:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
Now, surely that post lost its protection for... ya know... the f-your-mom part? Right? RIGHT!?

Nope! The NLRB actually held that the Facebook post was protected activity under the NLRA. The NLRB relied in part on the employer's tolerance of profanity in the workplace. So, apparently if employer's tolerate some cursing in the workplace, employees have a right to post this profane vitriol online so long as they toss a "Go Union!" on the end.

HT: Eric Meyer via The Employer Handbook. I'm not gonna lie . . . at one point I checked the date on his blog entry to make sure it wasn't April 1. Nope, April 3.