Are you allowed to criticize your boss or place of employment in a mass email or on Facebook? The answer is yes, if your speech falls under the protection of the National Labor Relations Act (“NLRA”).
The NLRA is a federal law that protects the rights of employees to act together to address conditions at work, with or without a union. Specifically, the Act states that employees are allowed to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. 157.
The National Labor Relations Board (“NLRB”), the independent federal agency that enforces the NLRA, has said that employees’ rights to engage in protected concerted activity extends to their speech in electronic communications and on social media. Recent court rulings have upheld this interpretation of the law.
For example, in June 2015, an administrative judge ruled that a drama teacher at an elite New York City private school was unlawfully terminated for sending an email criticizing the school’s administration. The teacher, David Brune (“Brune”), sent the email that led to his termination in response to the school’s handling of a musical performance in 2014. The musical, Thoroughly Modern Millie, contained Asian stereotypes and a plot about a white slavery ring in Hong Kong that offended some of the school’s parents. In response, the school administration halted production, and students rewrote parts of the play to appease the parents’ concerns, and ultimately the musical was performed. However, some of the teachers involved, including Brune, were unhappy with the way the changes were handled. They were frustrated because they felt that they had to put in a lot of extra work to “sanitize” the play, but the school administration did not acknowledge or appreciate their efforts. So Brune sent a 500-word email to the members of his theater department, stating, “I don’t think we need grovel at the feet of the administration and beg for scraps, for thanks or appreciation. We have been grievously wronged and we would like an apology.” Brune also wrote that the school administration “lied to us and lied to the students” and that it should “apologize for lying.” As a result, Dalton decided not to renew Brune’s contract that year, the first time since he had been working there since 2001. (Teachers at Dalton are not unionized and their contracts are renewed on an annual basis).
Brune filed a complaint with the NLRB on October 10, 2014, and on June 1, 2015, an administrative judge for the NLRB ruled in his favor. Although Brune was not part of a union, and although Brune did not purport to represent any other employees when he sent the email, the Court nevertheless ruled that Brune’s email constituted a “concerted activity.” In his opinion, Administrative Judge Arthur J. Amchan, stated that “The activities of a single employee in enlisting the support of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity.”
Thus, the Court ordered that Dalton reinstate Brune and pay him back wages.
Of course, not everything an employee writes in an email or posts on social media is necessarily protected speech. Whether your speech falls under the protection of the NLRA’s “concerted activity” provision is a very fact-specific, legal question. If you believe you have been illegally retaliated against by your employer based on something you wrote in an email or on social media, you should consult an experienced attorney.
By Zinnia Faruque, Esq. and Ty Hyderally, Esq.
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