It has pretty much become common knowledge that making complaints about illegal conduct occurring in your workplace is considered protected; meaning you cannot be retaliated against for making complaints. Now that communication is more often accomplished through social media than anything else, employees need to consider the things they say on Facebook and the like. Every complaint you make, may not necessarily be protected.
Facebook complaints about employer could be protected
According to anti-discrimination laws, retaliation means taking an adverse employment action against an employee for engaging in legally protected activity. "Legally protected activity" generally falls into one of two categories: participation or opposition. In other words, you either oppose a practice believed to be unlawful discrimination or you participate in some type of employment discrimination proceeding. Technically speaking, if you made a complaint about an employer on Facebook, regarding what you believe to be illegal conduct, your employer could not take action against you for your comments. However, in some cases, the comments could cross the line.
Insubordination vs. protected complaint
In a recent case, a conversation between two employees on Facebook may have started out protected, but that protection was lost when the comments crossed the line to insubordination. The lawsuit alleges that, the employees were asked by their supervisors to anonymously list the pros and cons of working at the teen center. After they complied, the employees allege the supervisors started giving the employees "the cold shoulder." The two employees tried to have a follow-up meeting with the supervisors, but were not successful. One of those employees was soon after demoted.
Not surprisingly, these actions led to an angry tirade on Facebook. The lengthy Facebook exchange between these two employees included profanity and name-calling. However, that was not the real problem. The comments also indicated that, when they returned to the teen center, they were going to "raise hell" and host "crazy events" without permission. They also stated they would take the students on field trips "all the time to wherever the f*** we want!"
It wasn't long before another employee provided copies of the conversation to management, and these two employees were let go. Clearly, these comments crossed the line. As the company informed the employees, "[t]hese statements give us great concern about you not following the directions of your managers in accordance with RDNC program goals. We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants."
When these claims were considered by the National Labor Relations Board (NLRB), the Board determined that, viewing the facts objectively, the employees lost the protection of the Act. In essence, the employees Facebook conversation included comments that advocated insubordination. In fact, the comments provided detailed descriptions of planned acts of insubordination. This conduct made the employees "unfit for further service."
If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online calling us at (205) 265-1880.