Legal Trickery – Eric A. Parzianello

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“My Supervisor Is A Psychopathic Scumbag”: Protected Facebook Post? NLRB Incredibly Says “Yes”

Posted by Eric Parzianello on February 2, 2011

From an employer’s perspective, the National Labor Relations Board complaint against a company for firing an employee after she posted derogatory comments about her supervisor on Facebook is beyond absurd. The complaint was filed after an ambulance company fired an employee for venting on her Facebook account that she “love[s] how the company allows a 17 [the company’s term for a psychiatric patient] to be a supervisor,” before calling the supervisor a “scumbag” among other things.

The NLRB’s position, taken directly from its own Office of the General Counsel News Release is as follows:

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.”

The NLRB is an independent federal agency which has the authority to safeguard employees’ rights to organize and to remedy unfair labor practices committed by private sector employers. One reporter notes that this case appears to be the first time “the board has argued that workers’ criticisms of their companies or bosses on a social media site is considered a protected activity.”

The purported basis of the complaint rests in Section 7 of the National Labor Relations Act which permits employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

While a hearing was scheduled for January 25, 2011, a postponement of that hearing until February 8th to allow for additional settlement discussions may show that the NLRB is reluctant to have a written opinion issued in favor of the company.

A television news account of the case can be found on YouTube.

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