Since 1935, the National Labor Relations Act has protected the right of private-sector employees to discuss workplace conditions. But as conversations shift from the break room to the sphere of social media, regulators are facing new challenges in distinguishing protected speech from "mere griping." Bob talks with Lafe Solomon, General Counsel of the National Labor Relations Board, about what can and can't be tweeted about the workplace.
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BROOKE GLADSTONE: Fretting about journalism in the age of Twitter? Well, don’t. Instead, join me on January 29th at New York Public Radio’s Jerome L. Greene Space, for a conversation with the man who tweets revolutions, NPR’s social media guru, Andy Carvin. He’ll talk about his new book, Distant Witness: Social Media, the Arab Spring and a Journalism Revolution. For tickets, go – I suggest quickly – to onthemedia.org.
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BOB GARFIELD: From WNYC in New York, this is On the Media. Brooke Gladstone is out this week. I’m Bob Garfield. And, since Brooke’s away, I want to take the opportunity to express some grievances. For starters – this is between us – Brooke spends way too much time on eBay. Also, she loves “Star Trek,” like without irony. And she leaves old scripts and chewed up pens all over the studio. She is –
JAMIE YORK: Yeah Bob, I don’t know exactly how to say this.
BOB GARFIELD: Yes, Jamie? Ladies and gentlemen, Jamie York, our acting senior producer. What is it?
JAMIE YORK: I can’t let you start the show by badmouthing Brooke on the air. It’s unprofessional and – I’m going to assume it violates station policy.
BOB GARFIELD: Uh, yeah, I guess I understand that. What if I were to tweet it?
JAMIE YORK: Ah, I, I don’t know. It’s your funeral.
BOB GARFIELD: Well, Jamie, it just so happens that our first guest is in a position to answer that very question.
Lafe Solomon is acting general counsel of the National Labor Relations Board. It's his job to go after companies that wrongfully punish or fire employees for speaking negatively about work conditions, whether those conversations take place in the break room or in the Twittersphere. Lafe, welcome to On the Media.
LAFE SOLOMON: Thank you, Bob.
BOB GARFIELD: Now, there are a lot of company policies restricting what employees can say about their employers inside and outside of the workplace. What would be legitimate considerations for an employer that would trump basic First Amendment protections?
LAFE SOLOMON: Well, the employer certainly can protect trade secrets, confidential information about the customers or the patients or the clients of the company. But they can't just say workers can't talk about confidential information because that would include your wages, and you have a right to talk to other workers about your wages.
BOB GARFIELD: But there were other reasons for companies to restrict what employees can say. There's also just the general comportment of their representatives in public. Do companies not have a legitimate interest not to have people they’re paying out there just badmouthing them willy-nilly?
LAFE SOLOMON: Well, it depends on what they're badmouthing about. That's the whole problem. Of course, companies don't want any negative publicity of any kind, and social media adds the aspect that the audience could be quite large and lasts for a very long time. But there is still the basic protection under the law for workers to band together collectively and to take collective action. It isn't that we protect any discussion on social media. Two-thirds of the charges filed, the workers are looking for group action, that there is concert. There is a level at which you can lose your protection, even if it's concerted, if you do it in a manner that goes above and beyond the appropriate bounds.
BOB GARFIELD: Can you give me some examples of some language that was deemed fair play?
LAFE SOLOMON: So we had a case in a, a sports bar. A worker finds out that her taxes had not been withheld by the employer and she now owes the IRS some money. And so, she’s very upset. She goes on Facebook. She says the employer’s “an [BLEEPS]” and then other employees start joining the conversation, some by just pushing the Like button. Other people said they also owed money, and they referred to one of the employers as “such an [BLEEP].”
The company fired them and issued complaints, saying that they were engaged in concerted activity, that the few expletives they used were not such that they should lose their protection under the act. The judge agreed with us but it's pending now before the board.
BOB GARFIELD: All right, note to self: Under certain circumstances, I can tweet that my employer is “an [BLEEP].”
Can you give me an example of social media communications deemed beyond the pale?
LAFE SOLOMON: Yes, this also happened in a bar. The bartender writes on Facebook, complaining that he hadn't had a raise in five years, and he was doing the waitresses’ work without tips. That would been one thing, if he’d stopped there, but he didn't. He called the employer's customers rednecks and stated that he hoped they choked on glass as they drove home drunk. We felt, and it wasn’t much of a stretch for us, that that - that lost protection under the Act.
BOB GARFIELD: All right, Lafe, let me just go back to where we started all this. What can’t I say about Brooke?
LAFE SOLOMON: [LAUGHS] You can say anything you want. It’s a question of what we protect. We’re not going to go to bat over you don't like Brooke, that Brooke’s messy, that Brooke chews pencils. None of that is going to rise to the level of anything that the NLRB's going to protect.
Now, if you said she's messy and creating a safety hazard, and then Jamie says, I agree, we’ve got to do something, you’re then getting closer to something that we would protect, if the producer fired both of you. You were doing what the board considers mere griping. And mere griping, by itself, is neither concerted nor protected.
BOB GARFIELD: Uh, in that event, that wasn’t me!
LAFE SOLOMON: [LAUGHS]
BOB GARFIELD: Lafe, thank you very much.
LAFE SOLOMON: Thank you, Bob.
BOB GARFIELD: Lafe Solomon is acting General Counsel for the National Labor Relations Board.