<http://schema.org/articleBody>
"Consider two scenarios: A truck driver who is stuck on a dangerous road between Kansas and Wyoming and can\u2019t get in touch with dispatch posts a help message on Facebook and is promptly fired; meanwhile, an EMT calls her boss a \u201Cdick\u201D on the social network and is protected by law against retaliation.\nSound fair? Maybe not, but it\u2019s legal.\nThe legislation that decides what employees can and cannot post about employers online has an interesting past. Turns out that a piece of 75-year-old New Deal legislation plays a pivotal role. The National Labor Relations Act (NLRA) was established in 1935 to protect employees who engage in \"concerted\" (read: collective) activities toward the improvement of work conditions. The act protects employees\u2019 rights to bargain collectively and helps non-union private sector employees who work together to challenge unfair labor practices.\n\nSEE ALSO: Reporter Put on Leave After Refusing to Remove Facebook Post\nSo how is the National Labor Relations Board (NLRB) deciding modern-day Facebook cases? The fundamental protections offered by the NLRA extend to \u201Cconcerted activity\u201D for justice or positive change in the workplace, but employees who engage in \u201Cmere griping\u201D are usually on their own. Surprisingly, when applied to Facebook postings, NLRB judges have found many incidents of what might seem like \u201Cgriping\u201D that are actually protected under this act. How? Turns out it takes a \u201Cfactual determination\u201D of whether actions around the incident constitute a \u201Cconcerted activity.\u201D It\u2019s possible that a simple \u201Clike\u201D from a fellow employee on a post could swing a judge to label a complaint a \u201Cconcerted\u201D effort.\nWhile I am not a lawyer, I have read many of the NLRB cases and spoken with lawyers on these topics. The following is not legal advice, but are cautionary tales and tips that just might save your job. \nCase #1: Be Concerted\nOn October 28, 2011, a customer service manager at an Oklahoma Walmart posted this on his Facebook Page:\n\u201CWuck Falmart! I swear if this tyranny doesn\u2019t end in this store they are about to get a wakeup call because lots are about to quit!\u201D\nThe employee later posted additional comments, using an expletive against the practices of a named assistant manager and stating he would contact the store manager about the problem. Days later, the employee was fired; he sued, claiming Walmart could not fire him because he was engaging in \u201Cconcerted activity.\u201D\nThe employee received several comments from fellow employees, of the \u201Chang in there\u201D sort, and he got several Likes, but none of the other employees\u2019 posts suggested they felt the same way. Walmart contended that the employee\u2019s postings were not \u201Cconcerted activity;\u201D the judge agreed.\nThe NLRB dismissed the employee\u2019s claim, saying that his comment and subsequent comments from co-workers were \u201Cmere griping\u201D from an individual and did not represent the type of \u201Cconcerted activity\u201D protected by law.\nSo what constitutes concerted activity online? \nMy interpretation is that the comment must:\n\nBe related to working conditions such as pay, safety, processes, or benefits. In other words, the comment should apply to the benefit or working conditions of more than just the individual.\nMove toward taking some kind of action. Simply stating facts isn\u2019t good enough. The comment should ask for support, call a meeting, or suggest an action of some sort.  \nHave the support of two or more employees. Hang-in-there comments don\u2019t cut it. Employees must agree with your statement and offer their own insights and/or solutions.\n\nBecause the Walmart employee\u2019s comments contained none of these elements, the employer could legally terminate him for his actions. Is Facebook \u2014 a public platform \u2014 a safe place to curse out your employer? Nope.\nCase #2: Go Beyond Facebook\nOn November 9, 2009, in New Haven, Conn., an EMT posted that her supervisor was a \u201Cdick\u201D after he sided with a patient\u2019s husband who had complained about her. The supervisor threatened disciplinary action over the Facebook post and asked her to fill out an incident report. The EMT asked for a union representative but was refused.\nThe NLRB sided with the EMT, stating that her Facebook comments were protected because they did not disrupt work, they were posted after her shift, the name-calling was not accompanied by any threats, and the post was in response to work conditions.\nThe fact that the employee had requested a union representative and had her partner as a witness contributed to her protection. Otherwise, this case may have turned out very differently.\nJust Don\u2019t Do It\nThe bottom line is that it\u2019s simply safer to avoid complaining about your job or employer online. You are not guaranteed protection under the law.\nIt's possible to sway a judge by getting Likes, mentioning work conditions, having in-person conversations with co-workers or avoiding threats, but in the heat of the moment, you\u2019ll rarely be considering those small details \u2014 even if you do understand them. The guidelines here are a great start, but the results will ultimately fall in the hands of a specific judge.\nAbove all, remember that Facebook is a public publishing platform, and anything you say there could get you canned. Look at our Wyoming-bound truck driver. When he couldn\u2019t get in touch with dispatch, he posted that \u201Chis company was running off all the good hardworking drivers.\u201D No one liked his comment, nor did he discuss his comment with anyone offline. Again, his mistake was failing to suggest some kind of action to be taken, and not getting documented support for his complaint from other workers. \nThe best advice of all is simple: don\u2019t. If you have a real problem at work, take it up with your manager or with HR, and document each conversation. If you\u2019ve already complained and have gotten fired for it, take a look at the NLRB site to see if you might have a case.\nHave you or someone you know gotten fired for something posted on Facebook? Share your story in the comments below."^^<http://www.w3.org/2001/XMLSchema#string>
<http://mashable.com/2012/08/26/complain-boss-facebook/>