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Almost everyone uses social media these days; you certainly know people who spend way too much time blogging, Facebooking or Tweeting – and if you don’t know such a person, odds are good that you are such a person.

And while 97 percent of what happens on social media is absurdly narcissistic (not to mention filled with statistics of dubious provenance), there must be something valuable to do online, right?  Of course there is: Trash your boss!

But if you’re going to trash talk your employer – or your supervisor, or coworkers – do it sensibly!  You don’t want to get fired for some run of the mill snark or impertinence, do you?  Fortunately for you, the National Labor Relations Board recently issued a report with extensive guidance for you keyboard monkeys.

So fire up MySpace, grab that two-liter Mountain Dew, and have at it, but keep these rules in mind:

1) Don’t scorn, organize!  You shouldn’t just gripe; you need to be engaging in group action.  Simple venting and expressing frustration — posting to your non-work friends about how your boss is a slave driver — is not protected activity.  Posting about how your boss is a slave driver and asking your coworkers if they agree probably is protected!

In one recent case, an employee was fired for bitching about a coworker—but because the post ended with “My fellow coworkers how do u feel?” – this made the post “a textbook example of concerted activity,” and was therefore protected.  By contrast, an employee who posted on the Facebook wall of her U.S. Senator was not protected, for there was no concerted activity.

2) The more your comments concern the “terms and conditions of employment,” the safer you are.  A steady stream of narration about every customer who comes through the office puts you on less solid ground than pointing out that you aren’t paid nearly enough to put up with this nonsense.

3) Post things at home and when you’re off the clock.  Come on, people.  You don’t have to like your work, but when you’re in the office you should do your work, and if you’re doing something else, you’re probably not protected.  But talking to coworkers (even electronically) off work time, off work property and off work equipment—that right is enshrined pretty well.

4) Use good judgment.  Here, of course, is where things get dicey.  In general, you should say things that are true.  (But don’t sweat it too much; in general, the test is not whether something is false, but whether it is “maliciously false.”  So yes, you can probably call your boss a jackass or a scumbag without too much fear, so long as the other conditions are met.)  But there are unclear lines you can cross where you lose the law’s protection.  Defamation will often lose you protection, as will certain opprobriousness, disloyalty or recklessness.  Caveat emptor.

But wait—what if your employer has some sort of policy governing your use of social media?  Odds are decent that the policy itself, if overbroad, may be an illegal one!  Your boss can only set policies that comply with the law, and that respect all of the protections you have to engage in concerted activity.

So now you’re all set.  Well, one little thing remains: All of the foregoing is how the law works on paper.  How it plays out in the real world is a whole other story.  Remember, most workers in this country can be fired just about any time, for just about any reason (or no reason).  The main exceptions: If you are fired for belonging to a “protected class,” if you’re fired for engaging in protected activity (described here), or if you’re lucky enough to work in a unionized workplace and have a “just cause” clause in your contract.

Now feel free to “like” this post.  Then get back to work.

 

Jon Zerolnick is LAANE’s Research Director, and he is most assuredly not on Facebook.  Though he has been fired for union activity, and though he often thinks he’s a lawyer, he is not one; this post is for entertainment purposes only and should not be construed as providing legal advice.

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