Complaining about your job on social media might be protected speech

Most people expect to get fired if they go bad-mouthing their employers to customers or to the public, and for good reason. But the law provides some protections when workers are talking with each other about working conditions and — according to a federal appeals court — that might include on social media.

The Second Circuit Court of Appeals recently upheld a federal labor board’s decision against a Connecticut restaurant that fired employees for their online comments. 

A former worker at the sports bar had complained about owing more in taxes than expected, and posted on Facebook that “Now I OWE money….Wtf!!!!" The post triggered a conversation, with the current bartender of the restaurant posting, “I owe too. Such an a*****.” The bartender was fired. And so was a cook, simply for liking a post.  

But the National Labor Relations Board decided the firings were improper because they violated the National Labor Relations Act, which protects “concerted activities,” or speech involving employees discussing how to improve workplace conditions with each other.

“It's a fancy way of saying more than one employee getting together and trying to improve their working conditions,” said Grant Collins, an employment attorney at Felhaber Larson, a law firm in Minneapolis. “Employers really need to be careful when they have more than one employee discussing their hours and wages, or even griping about those wages, on social media like Facebook or Twitter.      

And the law protects employees even when the language gets salty, at least to an extent.

“The difference between throwing in some expletives or using some foul language, doesn't by itself cause the employee to lose protection of federal labor law,” Collins said.

However, the law does not allow employees to act maliciously or direct their anger at customers; the conversation needs to occur in good faith and between workers. The Second Circuit said, to remain protected, conversations cannot be directed at customers, even though it is possible customers may see them on Facebook.

“Now, these conversations, instead of taking place in a bar or at the employee's house or parking lot after work, they take place on a social media platforms, like Facebook, where potentially everyone can see it,” Collins said.

While the federal appeals court upheld the labor board decision, the court did not publish the decision, making the decision not officially law, but still influential.

Collins told Fox 9 that he is advising businesses to speak with an attorney before taking action based on social media comments, and that employers “can’t have a policy that says anything the employer dislikes on social media is unlawful.”

As for employees, Collins said courts make decisions on a case-by-case basis, so there is always risk discussing employers on social media.