Employee Fired for Disparaging Her Boss on Facebook
It is a little known provision found in the National Labor Relations Act. An employee has the right to discuss "terms and conditions " of employment with other employees. An employee can discuss whether they like their supervisor or whether they are paid enough. Discussions about work issues were seen as the precursor to forming or not forming a union. So, the National Labor Relations Act, a 1930's era statute, allows employees such discussions. I discussed this provision in a prior post. The National Labor Relations Board refers to this as "concerted activity." They define concerted activity as two or more employees getting together to improve working conditions. See NLRB webpage.
So, it was sure to happen sometime. An ambulance driver and union member in Connecticut 
discussed and disparaged her boss on her Facebook page. The remark drew supportive statements from other employees. The ambulance service fired her. Now, the National Labor Relations Board is investigating. They have issued a press release denouncing terminations for an employee discussing terms and conditions of employment. See press release.
Dan Schwartz at Connecticut Employment Blog, who primarily represents employers, has warned employers abut this. See his blog post. Even though this partiucular employee is a union member, the provision regarding discussing terms and conditions of employment is not limited to union members. So, employers, if you have a social media policy, make sure it does not prohibit discussions of "terms and conditions" of employment.
Both the ex-employee and the company have some difficult facts. While the company may have an "overly broad" social media policy to deal with, the ex-employee may have crossed the line from NLRA-protected discussion to defamation with her reported comment that her supervisor was a "17", which was apparently internal company parlance for a psychiatric patient. Whether it was actually defamation will depend upon what the facts ultimately show, but many will be left with an uncomfortable feeling if the employer ends up with some kind of substantial sanction against it. Most people would expect consequences if they said such things about others at work. While negative conversations about supervisors are allowed (as observed in 344 NLRB 832, among others), the NLRB and courts have generally found that the NLRA does not protect activity that is otherwise illegal or "wrongful" (see, for example, 321 NLRB 937 (1996) and N.L.R.B. v. Brookshire Grocery Co., 919 F.2d 359 (5th Cir. 1990)). One thing is certain - that case will be closely watched.
Good points. Thanks.