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...
The reason would be this: companies all too often can come across as monolithic and inhuman. In today's day and age, companies need to cultivate good employee-manager relations. When Nelson's supervisor refused to allow her time to contact her union rep, he aggravated the issue and sparked a need in Nelson to vent to her social networking peers. That is perfectly understandable. So while my company does have the legal right to terminate Nelson for criticizing her supervisors, it does not present the company as being employee-friendly. Rather than insist on legalities, I would prefer to settle the union's charge voluntarily and come to an understanding with Nelson to see if she would at least accept some form of disciplinary measure while for our part we could at least admit that her supervisor had taken a misstep by blocking her desire for contact with a union rep.
This is not to say that the company committed an unfair labor practice by (1) discharging Nelson for her Facebook postings or (2) denying Nelson an opportunity to meet with her local union representative during an investigatory meeting with her supervisor, or (3) enforcing an overly broad blogging and Internet use policy. The company does not want to admit any wrongdoing and neither does Nelson. That is all perfectly understandable. But let us look into the matter as objectively as possible.
Nelson was asserting her Weingarten Rights when she asked to meet with her union representative during the investigation (Discipline and Workplace Rights). The purpose of doing so, for Nelson's part, was to ensure that a union rep could be present to witness the investigatory process and to ask pertinent questions when necessary. This is part of employee protection against unjust persecution on the part of the employer. It is, after all, "the right of employees to have union…
