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The debate over social media and protected employee speech: Part I

We have previously written about the ways in which social media such as Facebook and Twitter is impacting employment law. Over the last year, employees in Florida and around the country have been fired or disciplined for making work-related complaints on social media sites.

But many of these employees have decided to fight back, accusing their employers of wrongful termination. They claim that their social media speech is protected under the National Labor Relations Act of 1935.

This law protects the rights of employees in the private sector to complain with other employees about workplace safety, pay, treatment by supervisors and other concerns. Some recent landmark cases have raised the issue of whether social media speech is protected under this law.

The first case alleging wrongful termination prompted by social media activity to involve the National Labor Relations Board (NLRB) occurred just over a year ago in Connecticut. A woman who worked as a paramedic was fired for comments she made about her supervisor on Facebook.

According to the NLRB, the woman was involved in an online discussion with other employees and she was upset about a recent encounter with her supervisor. While accessing Facebook from her home computer, she called him a "scumbag."

After her firing, the NLRB filed a complaint on the woman's behalf. It argued that her online speech was considered "protected concerted activity," because she had been discussing a supervisory action with fellow employees.

The case was settled before it could be heard in front of an NLRB administrative judge. But that case prompted a wave of similar complaints from other employees who felt that they were illegally fired or disciplined for their online speech.

Check back later this week as we continue our discussion. We'll talk about what behavior the NLRB considers protected speech and what might be considered unprotected complaining.

Source: The Wall Street Journal, "For Angry Employees, Legal Cover for Rants," Melanie Trottman, Dec. 2, 2011

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