Federal Labor Law Picks up Where the First Amendment Leaves Off

Freedom of speech restricts the government's ability to suppress speech. The government may not restrict citizens from gathering in public or staging peaceful demonstrations, among other things. The First Amendment does not restrict private employers from firing you for talking about work on Facebook, but the National Labor Relations Board just might.

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As the New York Times reported earlier this year, at Hispanics United of Buffalo, a nonprofit social services provider in upstate New York, a caseworker threatened to complain to the boss that others were not working hard enough. Another worker, Mariana Cole-Rivera, posted a Facebook message asking, "My fellow co-workers, how do you feel?"

Some of the responses were hostile and expletive-ridden, as they would have been had the employees met at a restaurant or bar after work. The National Labor Relations Act (NLRA) was first passed in 1935 and protects the rights of workers to discuss employer-related issues amongst themselves without fear of retaliation. As the National Labor Relations Board (NLRB) points out, workers today perceive social media interaction as the "new water cooler." Therefore, employees tend to feel safe and entitled to "talk" to their friends online.

All five employees of Hispanics United of Buffalo were subsequently fired as a result of the Facebook postings. When the discharged employees sued for wrongful termination, they won.

This legal opinion should not be interpreted as a free pass for all employees to broadcast whatever they want about their employer. The NLRA protects non-union employees so they can engage in discussion outside of work hours and off of the premises. The original post was seen by the court as seeking "mutual aid." The conversation that followed consisted of employees expressing their concerns and planning their own defense because of the accusation from a co-worker that they were lazy.

This does not mean that any social media posting is protected by the NLRA. Posts intended to harass, bully, or intimidate would likely not pass muster. But the NLRB does seem to be taking a stand that social media conversations outside of work hours from your personal computer that are intended to talk about a work situation are protected.

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