When bad-mouthing the boss is legally protected

October 25, 2011 at 7:00 am Leave a comment

Suppose after reading this blog, you take one more look at your Facebook and find that an employee of the credit union got home from work last night and posted a sarcastic critique of the credit union’s latest marketing advertisements.  Can the employee be fired?  This is the type of question for which the National Labor Relations Board (NLRB) provided guidance in a memorandum released by its Office of General Counsel summarizing fourteen administrative decisions in which employees were terminated after posting comments on social media.

As explained by attorney Michael Schmidt in a column yesterday in the New York Law Journal (subscription required), the analysis provides a useful advice for any one involved with your credit union’s HR and management functions.  Most importantly, even if your credit union is not unionized, the National Labor Relations Act gives employees the right to engage in “concerted activities” for either the purpose of collective bargaining or to provide mutual aid and protection.  This means that before firing that employee who bad-mouthed the credit union’s marketing efforts, there are several things to keep in mind:

  • Whether the posting on Facebook was with or on the authority of other employees and not solely the opinion of the poster.   In other words, was the employee just griping about a bad day or are other employees encouraging him to speak out about a bad idea.
  • Assuming a group of employees are acting together (i.e. concerted activity), is such a posting protected?  As explained by Schmidt, employee speech is protected when it implicates the terms and conditions of employment.  For example, a car salesman was deemed to be engaging in protected speech when he sarcastically posted pictures and comments about a recent sales event hosted by the dealership because such management decisions impacted commissions.
  • Whether the posting is so reckless or malicious as to provide grounds for dismissal notwithstanding the fact that its subject matter would otherwise be legally protected (i.e. the Charlie Sheen rule).  On the one hand this stands for the principle that you can’t bad mouth the boss with impunity, but in reviewing the memo you might be surprised to find that the NRLB found it was ok to poke fun at the auto sales event because the employee was merely expressing frustration.
  • Finally, even if you are 0-3, the NLRB may still let you get away with firing the employee if you can show that you would have fired him notwithstanding the comments.  However, as criminal defense lawyers sometimes say to their clients, don’t start packing your toothbrush based on that argument.

Clearly, these are extremely fact sensitive inquiries.  Given the fluidity of the field, you would be well advised to contact your HR professional before firing an employee based their opinions expressed in social networking media.  Your reactions may be totally legitimate, but there are legal issues as new as the technology.

Entry filed under: Compliance, General, Legal Watch. Tags: , , , .

If at first you don’t succeed. . . Guess who’s not coming to dinner. . .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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