Last year the National Labor Relations Board warned employers that certain kinds of social media speech by employees are protected against retaliation or prohibition, including specific complaints about their workplace (for example about wages, hours, benefits, or other conditions); the NLRB pointed out that these cannot constrained because are part of the process by which workers collectively seek redress under the National Labor Relations Act.
However, it turns out that not all types of employee complaints are protected, according to a recent memorandum from the NLRB’s associate general counsel. Using a real case as an example, the NLRB attorney advised that the dismissal of a clerical employee by Tasker Healthcare Group for posting complaints in an online forum was legal under labor regulations because she was merely “griping” -- meaning, complaining but without any indication that she or her interlocutors planned to organize to seek redress.
The clerical employee was messaging on Facebook with five other current Tasker employees and three former employees in order to organize a social event, when she repeated some workplace gossip to the effect that another ex-employee might soon be returning to the company in a supervisor position, and expressed her personal contempt for that person. She then opined that their employers were “full of shit,” adding “FIRE ME… Make my day.”
Importantly, the author of the statement made no mention of seeking redress, and none of the other current or former employees on the Facebook message reacted to her statement except for another general gripe from one of them; as a result it was essentially a passive complaint with no real content beyond an expression of dislike for the employer.
Under the NLRA, if the speaker isn’t trying to arrange collective action for redress, their complaint does not rise to the level of protected workplace speech. To qualify as protected speech under the NLRA, complaints must be aired as part of an effort “to initiate or to induce or prepare for group action” vis-à-vis management, according to the NLRB associate general counsel. In this regard, the NLRB looks for a “connective thread” between statements from employees which show they are discussing shared concerns and at least considering collective action.