Federal Law Protects Employees’ Right to Use Sarcasm in Social Media to Rally Workers to Improve Working Conditions

As social media changes, so do the ways people communicate. By now, many of us are at least acquainted with Facebook and Twitter and have at least heard of Reddit and Pinterest. As new social media platforms come on to the scene, workers will use them for all kinds of communication—including how to make life better at work. While workers are not always protected from discipline when the post comments about work on social media, social media can be a great organizing tool if done carefully and strategically. A part of that strategy is making sure it is protected by law.

The National Labor Relations Board (NLRB) recently evaluated whether an employer violated the law when it fired a chauffeur driver because of his “sarcastic” Facebook post about the employer’s policy. In Desert Cab, Inc., the drivers were upset with a new policy that resulted in drivers waiting hours to pick up customers, which negatively affected their pay. The driver posted a photo of drivers waiting around and said, “Hanging out at the Morgue. We are sent here to sit around for three hours for no reason.” The Board concluded that the post was protected concerted activity aimed at improving working conditions and was thus protected by federal law, even though it had a sarcastic tone.

However, not all social media posts about the workplace are protected.  In general, to be protected by the National Labor Relations Act, the speech, whether on social media or otherwise, must:

1- Be “concerted.” In other words, the speech must be made with, or on behalf of, other workers. This includes communication between individual employees, as well as communication intended to compel other workers to act. This also includes bringing group complaints to the attention of management. These forms of speech are examples of concerted activity.

2- For “mutual aid and protection.”  This means the speech must relate to improving the workplace, benefits, conditions, or other aspects of what it means to be an employee. The workers must be trying to make something about the workplace better or otherwise addressing employees’ interests that are connected to the workplace.

3- Not be disloyal or malicious.  To stay protected, the employee should not be intentionally untruthful, should avoid disparaging the employer’s product or service in a way that is unrelated to the labor dispute with the employer, and should not disclose confidential information or make threats of violence.

Where the speech meets the above criteria, mere sarcasm remains protected by the NLRA.

Sarcasm can be a powerful motivational tool when pushing for workplace improvements. If you have any questions about whether your intended message, whether sent on social media or through other means, will be protected by law, please contact us.

By David Rosenfeld | February 28, 2019

Legal Developments