By Steve Collis
Griping about your employer on Facebook may feel liberating, but for one Colorado employee, it liberated him right out of his job. Joe Lobato was feeling really sick at work. He states that when he told his supervisor he was sick, his supervisor told him not to leave his machinery again. Lobato then sat at his work computer to compose a long Facebook update complaining about his employer, apparently including the statement, “Guess they think a person is a machine and can’t get sick.”
A co-worker, and Facebook “friend” of Lobato, reported the Facebook post to the company. The company fired Lobato for “gross misconduct” for posting negative statements about the company on a public forum. Now Lobato is talking to the media because he is about to lose his house and wants to get his job back.
Can’t an Employee Gripe Online?
Employees have the right to talk about their working conditions and terms of employment with their co-workers, even if such “talk” occurs online. The National Labor Relations Board (NLRB) has focused a great deal of attention on employers’ social media policies, examining whether restrictions in the policies violate an employee’s right to engage in such conversations. In fact, overly restrictive polices or actions taken in response to such policies could result in an unfair labor practice charge against the employer. However, employees’ online rants are not protected when they are not for the mutual aid or protection of an employee or co-workers.
In addition, in some states, employers may be legally prohibited from accessing their employees’ private online accounts. Colorado recently passed a law prohibiting employers from requesting or requiring applicants/employees to disclose their user names or passwords for access to their personal electronic communications. Numerous other states have similar laws restricting employer access to private electronic accounts.
Lobato, however, appeared to be griping alone. He did not appear to be initiating any discussion with co-workers for their mutual aid or protection. In addition, the company learned of the negative comments from someone who had access to Lobato’s Facebook page, not through any apparent improper access. Moreover, Lobato posted his rant while he was on company time. Lobato says he has been told that his termination was justified.As Facebook, Twitter, and other social media become the new “water cooler” where workplace conversations take place, employees need to realize that comments made online can have consequences. Employers, on the other hand, need to update their policies and procedures to define acceptable and unacceptable employee use of social media and company electronic resources, without making their policies too restrictive so as to run afoul of the NLRB. While these new and ever-changing online platforms help shrink the universe by connecting us with acquaintances around the world, they raise unique challenges for both employees and employers alike when used in ways that touch the workplace.