Q. One of my employees has created his own web site. Recently, he 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 the worker for this conduct?
A. Many disgruntled employees are turning to the Internet as a means of expressing their frustrations. This phenomenon has become so popular it is now being referred to as the “Dilbert Effect”—in reference to the popular comic strip that lampoons corporate America.
Often, employers (and employees) believe that any adverse employment action taken against a worker based on public comments violates the First Amendment. The Constitution, however, protects the free-speech rights of public-sector employees. Private-sector workers 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 employment 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 unionized workplaces, all employees are protected under the NLRA.
The NLRA generally protects comments regarding pay and benefits. 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.
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 likely be defensible.
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