Can I be disciplined for complaining about my employer on Facebook?

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Question:

I work at a discount store, one of a large nation-wide chain. At a recent meeting, our manager announced that the company was changing its policy on work hours. Starting in a few months, no employee will be allowed to work more than 29 hours a week; the company is going to hire more part-timers to make up the difference. This is really going to hurt those of us who live paycheck to paycheck. And, I'm pretty sure the company is doing it to avoid having to provide benefits when the health care reform law goes into effect for employers (in 2014). 

I put something on my Facebook page about the policy change as soon as I got home from the meeting. I guess I wasn't the only one who was angry, because a bunch of my coworkers added comments. We were planning to go as a group to the manager to explain how painful the hours cut is going to be. But instead, all of us -- everyone who posted anything online about the policy -- got written warnings for inappropriate and unprofessional behavior. Apparently, company management saw the thread and didn't like it. Can they do this? 

Answer:

As we live more of our lives online, questions like yours are becoming more common. Generally speaking, the issue of how far employers can dig into an employee's online presence and what employers can do with that information is evolving almost daily. In your case, however, the answer is clear: Your employer may not discipline you for your Facebook conversation. 

Let's start with the hours cut. Unfortunately, a number of large employers have decided to duck the employer mandate in the health care reform law in this very way. In 2014, employers with at least 50 full-time employees will have to provide health benefits to employees who work at least 30 hours a week or pay a penalty for failing to do so. (You can find out more about this provision see Understanding the Employer Mandate in Healthcare Reform.) By limiting employees to working no more than 29 hours per week, your employer is avoiding the mandate. Crummy civic behavior? Lack of corporate responsibility? Many would say so. But it doesn't violate the law.  

The Facebook discipline is another story, however. Under the National Labor Relations Act (NLRA), the law that regulates the relationship among employees, unions, and management, employees have the right to take action together to improve the terms and conditions of their employment. These actions, called "protected, concerted activities," include conversations about workplace policies and practices, whether those conversations happen in the workplace or in cyberspace. 

The National Labor Relations Board (NLRB), which enforces the NLRA, has recently gotten very interested in whether online discussions count as protected, concerted activities. The NLRB has said that purely personal gripes are not protected. For example, if one employee posts a complaint about receiving a poor performance evaluation, that is likely not protected activity. However, if the employee posted a complaint that the company's performance evaluation system placed too much emphasis on productivity, and coworkers posted comments about how the company judges their work, that conversation would likely be protected. 

Similarly, if an employee criticizes a manager's clothing or personality online, that won't be protected. However, if the employee complains that a manager is bullying employees, and coworkers chime in with their own concerns about the manager's workplace behavior, that could be protected. 

In your case, no fine parsing is necessary. It sounds like you were disciplined for engaging in a discussion with coworkers, online, that criticized a change in company policy. You were also coming up with a plan to take your complaints to management. Under these circumstances, it's very likely that your Facebook posts constitute protected, concerted activities, for which you may not be disciplined. 

You haven't mentioned whether or not you are a union member. Interestingly, the answer doesn't matter. Even though the NLRA is a labor law, this provision applies to union and nonunion workplaces alike. After all, employees would never be able to form or elect a union in the first place if they could be punished for any collective activity or conversations about trying to change workplace policies. This protection is intended to allow employees to raise their concerns as a group, whether that group is a union or just a handful of coworkers. 

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