WASHINGTON -- American workers have been taking to Facebook and Twitter to passionately vent their workplace gripes, often in the most personal and vulgar ways possible. And as their bosses respond in kind with notices of termination, companies need to carefully consider whether they're breaking the law by firing someone due to the use of social media.
That's the take-away from a new analysis by the U.S. Chamber of Commerce of more than a hundred charges recently filed with the National Labor Relations Board (NLRB) involving social media and the workplace. Many of the complaints filed with the federal agency were brought by workers who felt they were illegally let go or otherwise disciplined for their Facebook musings. Others alleged that their companies had "overly broad" policies regarding social media that undercut their rights as workers.
"If you look across the country, there are just a lot of interesting scenarios out there," said Michael Eastman, executive director of labor law policy at the Chamber of Commerce and the author of the report. "Employees are not the most restrained on social media sites, and employers are not the most restrained in their reactions."
Indeed, the report confirms what any devoted Facebook user already knows -- people often don't consider the possible repercussions before posting something inflammatory on the social network, and their remarks often reach a much wider audience than they'd anticipated, including bosses who aren’t necessarily their Facebook "friends."
Employers, in turn, are firing workers for tarnishing the company with their outbursts or simply acting unprofessional online, sometimes not realizing that the employees' ramblings might be protected by labor law. Several such cases have already been litigated and settled, although the vast majority of social media-related cases before the NLRB are only in their early stages.
"Employers who never thought of the NLRB before suddenly have the agency asking about their social media policy," said Eastman. "It's kind of a wake-up call."
In the charges filed by workers, many accused their employers of firing them for disparaging their company's product on Facebook, for complaining on Facebook about not receiving their paychecks on time and for discussing disciplinary warnings on Facebook. Some workers were ordered by superiors to remove posts they made to the site. One was fired for writing, "I don't want to be here anymore. They don’t pay me enough and I don't give a sh*t."
An NLRB spokeswoman previously told HuffPost that the agency is drafting a report that will offer employers some guidance on the law. "It's ... to help employers understand where we're coming from on these," said spokeswoman Nancy Cleeland. "This is new territory."
As the Chamber report shows, the line between a fair firing and a potentially illegal one can be thin. In the case that prompted a torrent of complaints filed with the NLRB, the agency's general counsel maintained that a Connecticut ambulance worker was unfairly fired for criticizing her boss on Facebook. Although she called her superior a "d*ck" and a "scumbag" -- the kind of insubordination that workers are routinely fired for -- the worker's Facebook back-and-forth also seemed to include a meaningful discussion of workplace conditions, an activity protected by labor law.
But at the same time, the NLRB threw out a complaint from a Walmart worker who was disciplined in part for calling his boss a "puta" -- Spanish for "whore" -- on Facebook, essentially arguing that the worker was airing nothing more than an "individual gripe." So far, the board has suggested that for Facebook chatter to be protected by labor law, it must involve substantive talk about the workplace with other co-workers.
The NLRB's report on social media cases is expected to be released sometime in the coming weeks.
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