Discharged for Facebook Comments
The National Labor Relation Board (NLRB) has protected the right of free speech of employees posting messages on social media so long as that speech is limited to discussions about "wages and working conditions ... in an effort to improve them" (Kasle). In so far as Nelson's comments on Facebook regarding her supervisor were not constructive in the sense of advocating an improved workplace environment, they are not protected by NLRB's law. Thus, Nelson's employer did have the right to terminate her employment.
When does an employer have a legal right to discipline or discharge an employee for comments the employee makes about the company? It is a controversial question. Free speech advocates might suggest that all speech is protected. However, business advocates suggest that corporations and companies have a right to protect themselves. In this context, NLRB has stipulated that all criticism of employers must be done constructively on social media, and not simply come across as venting. Such stipulation should not appease free speech advocates because it is clearly an arbitrary and politically correct way of determining that employees may not say what they think about employers on the Internet. Nonetheless, the law is clear: employers do have a legal right to discipline and/or discharge employees who violate the NLRB's statute. As Jessica Sussman points out: "Employees have the right to discuss wages, hours, working conditions on Facebook or other social networking sites with coworkers and this activity is protected ... [so long as the discussion is part of a] concerted activity for the purpose of collective bargaining or mutual aid or protection."
Were I representing the company for which Nelson worked and the NLRB regional director asked if I would be willing to settle the union's charge voluntarily, I would state that I was willing to settle the charge voluntarily...
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