Should Workers Get Fired for Badmouthing Boss Online?

It’s a given in the workplace, everyone at some time or other complains about the boss. But if your employees are blasting you on Facebook and Twitter, saying you are a bully, that you have bad B.O. or are overworking them, can you fire them?

It depends on what your worker says, and how he or she says it.

“Under the National Labor Relations Act, workers have the right to discuss their wages and conditions of employment. Such protected activity generally involves two or more employees acting together to improve working conditions. However, not all activity is protected. Griping or ranting by a single employee is not protected, and certain behaviors will cause even group activity to lose its protection,” Tony Wagner, an NLRB spokesperson, told in a statement.

So employees shouldn’t be commenting on Facebook about how boring your last meeting was, but are legally protected to air complaints online about working conditions, so long as it affects more than one person. Forbes reported large corporations such as Target and General Motors are crafting more detailed social media policies in their employee handbooks, to ensure workers don’t trash their bosses on the Web.

But should small companies follow suit?

Larry Cary, partner at Cary Kane LLC, said smaller companies often don’t have the time or resources needed to create detailed social media policies. They rely on general resources available to them and focus on the day-to-day operations. But across the country, employment lawsuits are popping up regarding what is said on the Internet, due to a culture of online “oversharers.”

“Younger people who are growing up on social media treat it very differently than the people of my generation,” Cary, 60, said. “They write things that are quite shocking and emotive without thinking it through. These lawsuits happen with great frequency.”

Most employment policies are broad in scope, and the NLRB is concerned with written policies that are too broad and may limit an employee’s freedom to speak their mind, regardless of the outlet, he said.

“America is a place where everyone walks around thinking they have rights as workers, even though they don’t,” Cary said. “From a social point of view, however, what’s generally considered acceptable or not limits what employers do.”

Outside of a written contract or clause at public companies, employment is at-will, Cary said. If a small-business owner sees something unsavory written about themselves or their company online, they can call their workers in and talk with them about it. But whether or not you can take action and fire them is dependent on state law, he said.  Depending how you word your complaints, you may be protected by the NLRB.

“For example, New York has a statute that prohibits employers for retaliating against employees for engaging in off-premise conduct,” Cary said. “So if an employee supports a particular candidate for office, they can’t get fired in New York. But there’s nothing that prohibits an employer for retaliating against [a worker] over something on social media.”