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Social Media as Concerted Activity—Complaints about Employer

Social Media as Concerted Activity: If I post something about my employer on a social media site, can it get me fired?

With the advent of the social media craze and the propensity of participants to share many of the details of their lives, more and more employees have faced discipline and discharge from their jobs based on statements made about their employers, supervisors and co-workers on social media sites.  Social media has been a game changer in many ways, included among them is the way that people communicate.  Instead of one on one conversations with other disgruntled employees in the break room or the company parking lot, conversations in social media have lifted the veil of privacy and have made those communications open to the whole world – and employers are paying attention.  In response, many employers have instituted social media policies which may provide guidelines about what the employer may or may not allow.  These policies and the discipline that stems from them must be  balanced against an employee’s first amendment rights to freedom of speech (in public sector employment) and in many cases the use social media as concerted activity to organize and collectively bargain under the National Labor Relations Act.  In a recent case out of the Northern District of California http://scholar.google.com/scholar_case?case=10521317773814000311&hl=en&as_sdt=6&as_vis=1&oi=scholarr the district court found that an employee’s complaints about her supervisor and threats of violence did not merit first amendment protection because the employer was a private entity and under California’s constitution first amendment protection usually applies to  state action or employers who resemble state actors.  On the other hand, the National Labor Relations Board has found that complaints by employees about their employer may rise to the level of “concerted activity” and thus be protected speech under the National Labor Relations Act.  http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media.

While every case will be judged differently based on their own merits, one thing is for sure –social media is a game changer, sometimes for the better but also sometimes for the worse and if you choose to utilize social media in airing your grievances, you must assume that your employer will eventually see it.  So be prepared!

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