Last month, we were asked, “Can I be fired for trashing the boss on social media?” The answer was a resounding maybe. Of course, no one likes a grey area. Since then, the National Labor Relations Board (NLRB), who had previously not addressed the issue extensively, came to a decision that finally brought a bit of clarity to the problem area of protected speech versus at will employment.
At will employees generally can be fired for any (legal) reason. So, isn’t it perfectly legal to terminate an employee that tweets zingers about the boss’ catering choices and other mishaps at work? A BMW salesman did exactly that, and was fired for it. He posted a picture on Facebook of hot dogs, chips, and water at a BMW event celebrating a new model, along with a sarcastic caption. On the same day, he posted a picture of a Land Rover that was driven up a hill, over a wall, and crashed into a pond. Both dealerships were owned by the same company.
He trashed the dealership on the Internet. He damaged the brand. He deserved to be fired, right? According to the NLRB ... maybe? Here is where the grey comes in:
Probably Protected Speech
The catering complaints might have been protected. Employees have long been guaranteed the right to collectively complain about working conditions and salaries in order to work together to bring about change. While criticizing cuisine might not seem constructive, there was a tangible connection to protected speech. For one, it could be a complaint about working conditions. Also, crappy cuisine could lead to disappointed customers and less commissions. It amounts to complaints about compensation.
Not so Protected Speech
On the other hand, the mockery of the Land Rover accident served no valuable purpose. It did not relate to working conditions or salary; it was poking fun at the dealership and the thirteen-year-old driver. In the end, the NLRB upheld his termination because of the Land Rover photo.
The Bottom Line
Thanks to this decision, we're starting to get a clearer picture of the boundaries of protected social media speech about work-related matters. If the speech involves issues such as working conditions and pay, it should be protected. If the speech is simply, "ha ha lol my boss looks funni 2day n massed up on da emale sent out dis mornin," well, start looking into unemployment benefits and English classes at your local community college.
- Consult a Chicago Employment Attorney (FindLaw)
- Fired for FB, Tweets? NLRB Rulings Draw Lines (ABC News)
- Spy Versus I: Can Your Employer Watch You Read This? (FindLaw's Chicago Employment Law Blog)
- New Law: Illinois Employers Can't Ask for Social Media Passwords (FindLaw's Chicago Employment Law Blog)