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Letter of the Law: You Can’t Talk to Me Like That! Or Can You?

By Irene Kao

It’s Monday morning and before you have had your first sip of coffee, one of your supervisors barges into your office. She is upset because some of her supervisees were complaining about her on Facebook over the weekend. What do you do?

It actually happened
The National Labor Relations Board (NLRB) recently addressed a similar situation. Its decision in Hispanics United of Buffalo (Case 03–CA–027872) has caused a Frustrated woman at computernational stir, and could impact Minnesota cities. In this case, five employees were discharged for their comments on Facebook.

It all started when one employee, while at home and on her own time, posted on Facebook that her boss “feels that we don’t help our clients enough.…I about had it! My fellow co-workers, how do u feel?”

Four other employees responded by posting messages objecting to the idea that their work performance was subpar. When these five employees went back to work, they were immediately discharged for their remarks.

The employer deemed these comments as harassment under the employer’s policy. The NLRB disagreed with the employer, and found that these employees were unlawfully terminated. The NLRB held that these employees engaged in protected concerted activity for mutual aid or protection.

What does that have to do with Minnesota cities?
You are probably saying to yourself, “But I thought the National Labor Relations Act (NLRA) doesn’t apply to cities.” You are right, but state courts have used the NLRA to interpret provisions similar to those in the Minnesota Public Employment Labor Relations Act (MPELRA).

The NLRA protects an employee’s right to engage in concerted activities for the purpose of mutual aid or protection. “Concerted activity” includes an employee trying to enlist the support of her fellow employees, but it has to be more than just griping. In Hispanics United of Buffalo, the NLRB found that the co-workers had common cause with the employee and, therefore, what they did was considered concerted activity.

The NLRB also found that these actions were “mutual aid or protection” because after the employee posted her complaint on Facebook, she and her co-workers were preparing a group defense against the allegation that their work performance was substandard. (Of note, the NLRB further found that the employer did not meet the meaning of harassment under its own policy.)

A unique Minnesota twist
If the situation in Hispanics United of Buffalo happened in Minnesota, the same result might have occurred. Furthermore, the employees may have also enjoyed the protections under Minnesota Statutes, section 179A.06, which provides public employees with the right “to express or communicate a view, grievance, complaint, or opinion on any matter related to the conditions or compensation of public employment or their betterment, so long as this is not designed to and does not interfere with the full faithful and proper performance of the duties of employment…”

The bottom line is that while employers may still regulate and prohibit the misuse of social media, cities must also be careful with disciplining employees for online discussions of work conditions.

Now that you are equipped with a better understanding of the interplay between the NLRA and MPELRA, you can calmly take a sip of your morning coffee before responding to the supervisor standing in your office.

Irene Kao is a research attorney with the League of Minnesota Cities. Contact: lkao@lmc.org or (651) 281-1224.

Read the May-June 2013 issue of Minnesota Cities magazine

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