Disgruntled employees are increasingly tempted to rant about their bosses online. Maybe you find your boss incompetent. He blames other people, including you, for his mistakes. Or he plays favorites, giving others plum assignments while you and your co-workers are left to handle the drudge work. Or he is mean, impatient and unreasonable about deadlines. Or he is promoting men and holding women back. Posting these complaints to Twitter or Facebook offers a fast, efficient way to gripe to all your online friends and to reach out to colleagues who work for the same lousy boss.
But can you get yourself fired for venting on social media? Does the law protect your right to speak ill of your boss? The answer is yes to both questions, say two employment lawyers and Tony Wagner, a spokesman for the National Labor Relations Board. Technically, the National Labor Relations Act of 1935 protects most of the negative things you might want to say about your boss online. The rule is that your intention should be to improve or change the terms or conditions of your employment and the speech should be “concerted.” In other words, you should be trying to act in concert with colleagues who might feel the same way as you about your lousy boss.
Though the law may protect you, employers obviously do not look kindly on being the brunt of online criticism, especially on social media. A story on the front page of today’s New York Times describes how an increasing number of companies, including General Motors, Target and Costco, are issuing social media policies that say workers can’t disparage managers or co-workers on social media, and to do so can be grounds for firing. But the Times points out that the NLRB is pushing companies to rewrite their restrictive policies, believing that the NLRA protects employees who want to discuss work conditions openly without fearing sanction.
The only statements that aren’t protected are personal gripes or rants that affect no other employees but you. Example: You complain that your boss is being a jerk to you but not to anyone else in the office. Gossip that doesn’t affect the terms and conditions of your employment, like a post about the boss’s extramarital affair, is also not protected. On the other hand, you can write a post noting your company’s anti-nepotism policy and that your boss has just hired his wife. That does affect your working conditions and would be protected, explains Anne Golden, a plaintiff-side labor lawyer at Outten & Golden in New York.
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The Times lays out a few recent cases that illustrate how the law works. Two cases that didn’t favor the employees: One involved a bored police reporter at The Arizona Daily Star who posted Twitter messages bemoaning the lack of overnight homicides. “You’re slacking, Tucson,” he wrote. The paper found the posts offensive and fired the reporter. The NLRB reviewed the case and found that the reporter was personally venting, which is not protected under the NLRA. In another case, a bar in Illinois fired a bartender who was unhappy he had not gotten a raise in five years and launched into a rant where he called his customers “rednecks,” adding that he hoped they choked on glass and drove home drunk. The NLRA does not protect personal rants that don’t pull in other employees who may be experiencing poor working conditions, says the NLRB’s Wagner.
In a case where the NLRA did protect employees, an online argument had broken out between caseworkers at a nonprofit social services office, Hispanics United of Buffalo, where caseworkers went online to berate a colleague who felt they didn’t work hard enough. Hispanics United fired five caseworkers, saying they had harassed the complainer. But the labor board reinstated them, because it said they had engaged in concerted activity to discuss working conditions, activity that is protected by the NLRA.
Despite that victory and the NLRA’s broad protections for employees who complain about lousy bosses, and the agency’s push to get companies to relax their social media rules, Golden and O’Meara agree that it’s a very bad idea to use social media either to vent about your boss’s bad behavior or to try to organize colleagues to protest workplace policy.
“It’s foolish,” says Golden. “Even if it’s technically protected by the NLRA, it’s not going to make your boss like you or smooth your road at work when the company learns about this.” Most companies have automated searches for online mentions of their names, so if you post something, it will likely make its way back to your boss. “If you have things to complain about now, maybe you can’t be fired for saying them, but your life is not going to be made easier at work,” says Golden. “Retaliation is a very human response to feeling attacked.”
If you really want to organize your co-workers, protesting online is not the best way to do it. Even if you are careful about your Facebook privacy settings and you make sure only certain colleagues see your posts, Facebook postings are not as effective as in-person meetings about the problem at hand, says Golden. O’Meara agrees. Posting workplace discontent online, though legally protected, “is just one aspect of the bad judgment people exercise on social media.”