Maybe you can trash your boss online after all

Still not recommended, but 1935 law may provide some protections

FDR signs

The Wall Street Journal has a must-read story this morning that undercuts the conventional wisdom that a non-union employee who gets fired for trashing his or her employer online has no legal recourse.

Turns out some of them might, thanks to a 76-year-old landmark labor-protection law (that's FDR signing it, right).  And while the number of employees involved to date has been small - about 100 over the past year - their ranks are growing and it's easy to imagine this nascent trend exploding into full-scale legal, political and social wrangling.

From the Journal story:     

The cases turn on whether online postings mirror activity that is protected under the Wagner Act, as (the National Labor Relations Act of 1935) is also known. Passed in part to protect collective-bargaining rights, the law grants employees a right to engage in "protected concerted activity," such as discussing pay or other conditions. Individuals can be protected if they are speaking on behalf of other workers about the workplace.

To be protected, there must be group activity, in intention or result, said NLRB Acting General Counsel Lafe Solomon. Mere complaining isn't protected, he said.

The examples cited in the story - a worker calling her boss a "scumbag," a car salesman complaining about the food offered to customers - seem scarcely the stuff upon which labor movements are built. Yet some are carrying the day.

And, if you believe in the right to unionize, you pretty much have to believe in some free-speech legal protections for non-unionized workers who would seek to exercise that right, because any right to unionize absent such protections is meaningless.

(Technoly 'firsts' that made a president's day)

Where the lines get drawn is what this issue has been about and will be about going forward. Employers are complaining that the National Labor Relations Board has offered little guidance to date.

In the meantime, here's my takeaway: If you're going to be stupid enough to gripe about your employer on Facebook or your blog, every post -- if not every sentence -- should begin with the phrase, "As I was explaining to the group at lunch today, this kind of thing is why we need a union ..."

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