Can the Boss Fire Me for facebook? (By TDU)

January 3, 2014: You’re online and so is your boss. What are the Do’s and Don’ts for staying out of trouble?
     Teamsters are using Facebook to share information, sound off, and get organized. Facebook pages like Vote No on UPS Contract, No More Concessions!, Rebuild the IBT and others have helped Teamsters unite the rank-and-file.
     Social media can be a good tool for building union solidarity and for having a laugh. But you’ve got to be smart about what you post.
     If you’re on Facebook, chances are your boss is too. Employers are getting more aggressive about firing employees for posts they say cross the line.
     Can these terminations stick? Arbitrators and the National Labor Relations Board are sorting out this new area of labor law.
     In a series of decisions, the National Labor Relations Board has ruled that online conversations between coworkers on the internet have the same protections as face-to-face conversations. And these protections extend to complaints about management and supervisors.
     That means Teamsters can use social media to criticize their employer, management or working conditions as long as they are engaged in “protected, concerted activity.” Concerted activity happens when: 1) employees discuss wages, hours, or working conditions or union or TDU activity together, or; 2) one or more employees voice concern on an issue that impacts other co-workers (safety, for example) or 3) one or more employees discuss lawful union activity.
“My Supervisor’s Crazy!”
In one case, a Teamster EMT in Connecticut was fired for insulting her supervisor in a Facebook post after the supervisor blocked her from getting assistance from a union rep. The EMT’s facebook post: “Love how the company allows a 17 to become a supervisor.”
     17 is company lingo for a psychiatric patient. In a key fact in the case, other Teamsters posted supportive comments in response. Management took offense and fired the Teamster. The union filed an NLRB charge and the NLRB issued a complaint.
     An NLRB lawyer told the press, “This is fairly straightforward. Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
     The case eventually settled, with the company agreeing to rewrite its social media policy and not to discipline or discharge employees for engaging in discussions about wages and other work issues.

Protections, But Not a Free Pass

Recent NLRB decisions protect the right of employees to complain about their job and their boss. But this does not mean that “anything goes”.

Extreme personal attacks against bosses or co-workers may not be protected. The legal test is whether your post is so “egregious” that it makes your continued employment untenable. Posting racist or sexist comments about co-workers or management is not protected. Neither are violent threats.

Criticizing your employer’s product, service or customers also may not be protected. The issue here is “disloyalty” particularly if you’re comments could hurt the company’s business and are not made as part of a labor dispute.

Posting photos from when you’re on the job may not be protected. It’s one thing to post a photo of an unsafe working condition. It’s another to post a photo from the job that could hurt the employer’s business or image. The photos that recently appeared on Facebook of a prostitute in a UPS driver’s uniform are an extreme example.

Social Media Policies

Many employers are developing social media policies to establish rules for what kinds of posts can lead to discipline.

The NLRB has thrown out social media policies that are so broad that they would prohibit or have a chilling affect on workers’ rights to discuss wages or working conditions. But other aspects of company social media policies have been upheld.

Teamsters have contract protection above and beyond the law, and can use the grievance procedure to defend themselves from discipline if they are accused of violating company social media policy.

How well that works depends on what you are posting, what company policies are, the union’s case and other factors.

Think Before You Post

There is no such thing as online privacy. You should assume your employer could eventually see anything you post online. If they don’t see your original post it could easily be forwarded, tweeted or reposted.

Use common sense. Don’t post photos of your hunting trip if you called in sick. Never post when you’re on the clock, unless you are clearly on break. If you would have to deny saying it if you were confronted by management, then don’t post it.

If you are discussing your working conditions with coworkers, you have legal protections.

If you are posting comments about your employer that could be considered “egregious” or “disloyal” or if you’re posting work-related photos that have nothing to do with the union, TDU or improving wages and working conditions, then you may not be protected.

Use social media to build Teamster unity and solidarity. Share information and have a laugh. But think before you post.