Q. One of my employees has created his own web site and has been posting negative comments about our company. Specifically, he has accused the company of failing to provide adequate benefits and paying below-market wages. Can we fire this worker for this conduct?
A. Employers often believe that any adverse employment action taken against an individual based upon his or her public comments violates the Constitution’s First Amendment. But the U.S. Constitution only restricts the activities of public-sector employers. Private-sector employees generally do not have First Amendment rights in the workplace.
The National Labor Relations Act (NLRA), on the other hand, prohibits all employers from taking adverse action against a worker for engaging in “protected concerted activity.” Many employers erroneously believe that this statute applies only to union workers. Although these claims often arise in organized workplaces, all employees are protected under the NLRA.
Comments regarding pay and benefits are generally protected under the NLRA. Even a single individual may engage in “concerted” activity if the comments were made on behalf of other workers.
Thus, dismissing this worker based on the comments on his web site could create liability.
Employers should note that not all statements are protected. If, for instance, the worker disclosed confidential company information on his web site, firing him on this basis would probably be defensible.