Your boss comes to your office. He has just seen a YouTube video. A single perso

Question

Your boss comes to your office. He has just seen a YouTube video.

A single persom appears in the video. Although he appears in the shadows in an effort to hide his identity, the boss clearly recognizes who it is.

The person names the company and makes disparaging remarks about the boss and the company. He also complains of unsafe conditions - some of which you know or strongly suspect are true.

The person recently received an unfavorable performance evaluation. The boss wants to fire the employee immediately. You attended an HR conference and learned that the NLRB has spoken on this subject.

How do you suggest he proceed?

Explanation / Answer

As per NLRB some states are “right to work” states, in which an employer can fire an employee for any reason or no reason at all, provided that the firing is not predicated on the employee being a member of a protected class (i.e., one cannot be fired solely based on their race, ethnicity, age, gender, political affiliation, familial status, etc.) or done in retaliation for whistleblowing (such as in response to a report of sexual harassment or for notifying the government of illegal activities). Also, one must remember that the U.S. Constitution's First Amendment right to free speech only applies to a person's interaction with the government, and private employers can fire someone based on things they say without any concern about violating someone's civil rights. However, all private employers must respect the right of workers to “protected concerted activity,” the foundation for the formation of American labor unions. This is true even in non-union states and even for non-union employees.

In general, pursuant to the report, employees can discuss things related to their criticism of an employer, their working conditions, and disagreements with an employer's decisions or policies in social media as part of their right to “protected concerted activity.” But the word “discuss” is the key. Workers can vocalize, either in person or via social media, their sentiments and concerns regarding an employer without fear of losing their job thanks to this right, but only if they are discussing these concerns with other workers. If an employee simply starts complaining on social media about their employer and/or how much they hate their job solely for the purpose of venting their frustrations without any effort to engage other employees, then it is not a “discussion” and not protected as “protected concerted activity.”

It is a pretty fine distinction, but essentially, it comes down to how many people are involved. If a group of workers are collectively complaining about working conditions, it is concerted. If it is just one person vocalizing their own personal frustrations, it is not concerted, it is just complaining, and a firing is legal.

For example, imagine a retail store where the boss is a real tyrant, known for yelling at and belittling employees on the sales floor in front of others. A group of employees discuss their working conditions and begin sharing comments back and forth on their social media pages, possibly even recounting the boss's antics or posting photos or videos of him in action. Even though that material is publicly visible and could harm the employer's reputation, the employer could get into trouble for firing those employees, because they acted together (i.e., in concert) making the discussion a “protected concerted activity.”

On the other hand, imagine the same retail store, but only one employee complains about the boss on social media. Nobody else joins the discussion or, at best, only leave comments expressing their sympathies. In that case, there is no collective effort because it is only one employee complaining, not several acting in concert, so there is no “protected concerted activity.” As a result, any firing that resulted would be legal (at least, as far as this right is concerned).

In this particular case a single person appears in the video, so he is not protected (“protected concerted activity”) as far as this right is concerned. But saying this, he appears in the shadows, which doesn’t prove that he was the person responsible for the same. A vague idea of recognizing doesn’t hold good, as it is just an assumption, and doesn’t prove anything in the court of law (if the employee files a case), without any actual proof e.g. Youtube uploaded id etc. I suggest the employee should be spared, giving a written stern warning so that he doesn’t repeat the same.

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