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

Many Florida employees have used Facebook or other sites to vent about job frustrations to their coworkers. But if the boss finds out, could they be fired? Earlier this week, we wrote about a growing issue in employment law: whether or not work complaints made on social media sites are considered protected employee speech.

As of last May, regional offices for the National Labor Relations board (NLRB) had received more than 100 social-media-related complaints alleging wrongful termination or other illegal action. Of the cases reviewed so far, lawyers say that just over half merit intervention by the NLRB.

The National Labor Relations Act of 1935 (also known as the Wagner Act) protects employees who engage in discussions with other employees about things such as working conditions or pay. A representative for the NLRB says that discussion must be intended as or resulting in a group activity in order to be protected speech.

That's largely what differentiates it from mere complaining, which he says is not protected.

One such case involved a Frito-Lay warehouse employee. A supervisor had informed him that he would lose attendance points if he left early due to illness. He later made a comment on Facebook that he was "a hair away from setting it off in that b-," seemingly talking about the warehouse.

A human-resources manager discussed the Facebook posting with him and said that it sounded like he was threatening to harm other warehouse employees. He was fired, and the NLRB's subsequent investigation found that his online comments were not protected under the Wagner Act.

Online speech is a relatively new frontier in the field of employment law. The internet and social media have blurred the line between professional life and private life, sometimes creating unintended consequences.

But even though the medium for employee speech has changed, the laws protecting it have not. The NLRB says that employees - within certain limitations - have the right to complain about work without fear of disciplinary action.

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

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