Trashing the boss online still a bad idea, but there could be a loophole

Three congressional aides in the US recently lost their jobs in part because they are worthless layabouts who drink on the job, but also because they are but the latest to forget that Twitter lives on the internet and Tweets - especially those badmouthing your boss - are visible to one and all.

It is an inexplicably common memory lapse, certainly, but the behaviour on display in this instance was breathtaking for both its brazenness and stupidity. US Representative Rick Larsen, a Democrat from Washington state, fired the trio - and by his account took all of about an hour to decide to do it after being informed of the Tweets.

While that outcome was no surprise, a Wall Street Journal story from earlier this month painted a different picture, one in which the conventional wisdom that a non-union employee who gets fired for trashing his employer online has no legal recourse.

It turns out that some of them - though not necessarily the three former congressional aides - might indeed escape with their paychecks intact, thanks to the application of a 76-year-old landmark labour-protection law. And while the number of employees involved to date has been small - about 100 over the past year - their ranks are growing and it's easy to imagine this nascent trend exploding into full-scale legal, political and social wrangling.

From the Journal story: "The cases turn on whether online postings mirror activity that is protected under the Wagner Act, as (the National Labor Relations Act of 1935) is also known. Passed in part to protect collective-bargaining rights, the law grants employees a right to engage in 'protected concerted activity,' such as discussing pay or other conditions. Individuals can be protected if they are speaking on behalf of other workers about the workplace. To be protected, there must be group activity, in intention or result, said NLRB Acting General Counsel Lafe Solomon. Mere complaining isn't protected, he said."

The examples cited in the story - a worker calling her boss a "scumbag," a car salesman complaining that the food offered to customers by his dealership was subpar - seemed more like mere complaining than the stuff upon which labour movements are built. Yet some are carrying the day.

And, if you believe in the right to unionise, you pretty much have to believe in some level of free-speech legal protections for non-unionised workers who would seek to exercise that right, because any right to unionise absent such protections is meaningless.

Where the lines get drawn is what this issue has been about and will be about going forward.

For their part, employers are complaining that the National Labor Relations Board has offered little guidance to date. That's going to have to change.

In the meantime, here's my takeaway: If you're going to be stupid enough to gripe about your employer on Facebook or your blog, every post - if not every sentence - should begin with the phrase, "As I was explaining to the group at lunch today, this kind of thing is why we need a union ..."

And make sure you've got the number of a good lawyer.