Are Employee Facebook Rants Protected?

You may have heard about the National Labor Relations Board taking action against a Connecticut company that allegedly fired its employee Dawn Marie Souza for posting derogatory comments about her supervisor on Facebook. It’s gotten a lot of media attention. And about half a dozen people have forwarded it to me to blog about. So, being an eager to please kind of guy, here goes. There are a few important points to keep in mind. First, this is a complaint, not a decision. This starts the process, but there is a long way to go before there is any definitive decision. It’s like the tip off in a basketball game – great if your team gets it, but not outcome determinative. Second, it’s not a First Amendment issue. This is an NLRB issue, and it applies to “concerted activity.” That is, the criticism is not protected by the First Amendment, because private employers are not “state actors.” The issue here is whether the Facebook posting is equivalent to “water cooler” talk about terms and conditions of employment. The National Labor Relations Act prohibits an employer from disciplining employees for engaging in concerted activity which may include discussing working conditions with other employees. So the question may hinge on who are Ms. Souza’s Facebook friends. If none of them are co-workers the NLRB may have a tough time establishing “concerted activity.” But let’s wait and see before rushing to judgment.