Facebook Organizing: Legal Do’s and Don’ts

Workers are using Facebook to talk to each other about what happens on the job and in the union, and some are even using it to organize for change.

Walmart workers trade advice and stories on the “Organization United for Respect” page, which has 47,000 “likes.” Boeing Machinists opposed to a proposed contract linked up through “Rosie’s Machinists 751.” And many union reformers set up Facebook pages when they are running for office.

Those are the success stories. But if you read the tabloids, you’ve probably seen some horror stories, too: teachers fired for Facebook posts that criticize their students, restaurant workers fired for posts that insult low-tipping customers.

Here we’ll examine the do’s and don’ts by looking at two cases where posts were legally protected—and one where they weren’t.

THE NLRA

If you work in the private sector, the most important sources of rights in this context are the National Labor Relations Act and your union contract, if you have one.

The NLRA is a federal law that covers most private sector workers. It doesn’t cover agricultural workers, independent contractors, or supervisors. Airline and railroad workers are covered by a separate, similar law.

The NLRA protects your right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”—in other words, to organize with your co-workers for improvements on the job. You have these rights whether or not there’s a union at your workplace.

The NLRA protects your right to communicate online with your co-workers about working conditions, and to not be disciplined or fired for doing it.

What If I Work for The Government?

If you work for the government, you’re not covered by the NLRA unless you’re a Postal Service employee. But most public employees are covered by federal, state, or local laws modeled on the NLRA.

Government workers also have free speech protections under the First Amendment if they are speaking about matters of public concern. That’s in addition to any union contract protections.

In recent years the National Labor Relations Board has considered cases involving employees disciplined or fired for what they post on the Internet. Usually, it’s Facebook. But the same basic rules would apply for tweets, blogs, or other social media.

Most of these cases involve employees who don’t have a union. Union members have even more rights. But these decisions show what the current “bottom line” is regarding what a worker—union or non-union—can safely post on Facebook.

‘MY FELLOW CO-WORKERS...’

Internet conversations between co-workers get the same protections as do face-to-face conversations about wages, hours, and working conditions.

One case involved five workers at a non-profit organization in Buffalo who were fired for a conversation they had on Facebook. It started when one co-worker texted another, threatening to tell the boss that people weren’t working hard enough.

The person who got the text then wrote on Facebook: “Lydia Cruz, a coworker, feels that we don’t help our clients enough... I about had it! My fellow coworkers how do u feel?” Four workers posted responses, defending the work they were doing. The five were fired for “bullying and harassment.”

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The NLRB found that this Facebook conversation was protected “concerted activity” because one of the women had raised a workplace complaint and the others had responded with their own protests. This was “a first step towards taking group action,” and it was legally protected.

The five were ordered reinstated with back pay.

WORKING CONDITIONS

In another case, three workers at a San Francisco clothing store were fired for criticizing their manager. They were upset that she had ignored their concerns about working late in an unsafe neighborhood.

The initial Facebook post included these comments: “It is pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so...The way she treats us is NOT OK...”

Two co-workers posted responses expressing support. One wrote that she was going to bring a legal rights book to work. All three were fired.

The NLRB found that these postings were legally protected because the complaints were related to the supervisor’s refusal to address safety concerns. The employer was ordered to reinstate the workers with back pay.

DON’T JUST VENT

Compare these cases to one where it was found to be legal to fire a worker for something posted on Facebook.

That case involved a BMW salesman who posted a picture of an accident that happened on a test drive involving another salesperson. The customer had driven the car into a lake.

The employee posted a picture of the accident with the caption, “This is your car: This is your car on drugs.”

The NLRB called this posting not protected because no co-workers were involved in the conversation and the posting didn’t have anything to do with workplace issues.

TAKING IT TO THE LIMIT

Practically all union contracts, whether private or public sector, have a “just cause” provision that says the employer cannot discipline or fire you without a good reason that it can prove.

That makes it harder for your employer to discipline you for something that you post online—but there are still limits. Don’t publicly criticize your employer’s product, service, or customers. Your employer could accuse you of disparagement or disloyalty, especially if your criticism is not related in some way to working conditions.

For instance, a union member was fired for anonymously posting negative comments on an investors’ bulletin board, saying things like, “Don’t invest in this company. I work there and it is going downhill.” An arbitrator upheld the termination.

A FINAL POINTER

It’s a safe bet that your employer will eventually see anything you post on online.

So use common sense. Think twice before posting pictures from your hunting trip if you called in sick. Don’t post pictures of Grumpy Cat when you are on the clock. But do use the Internet as a tool to communicate with and organize your co-workers.

Julian Gonzalez is an attorney with Lewis, Clifton & Nikolaidis in New York City.

A version of this article appeared in Labor Notes #423, June 2014. Don't miss an issue, subscribe today.