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EMPLOYEE CONDUCT to freely discuss wages, hours and working conditions with their co-workers — rights protected by 75 years of federal labor law. So can you flame the boss with impunity, or will you get canned for lobbing a foolhardy Twitter slam? The answer is not that simple, but experts in the law say there are some bright lines forming to guide employers and employees. "There are two things I stress," says Lafe Solomon, the NLRB's acting general coun- sel. "The law protects workers if they are discussing terms and conditions of employ- ment and they are communicating with a group. It has to go beyond mere griping by an individual." Talking about wages, hours or working conditions with others is a pro- tected concerted activity, and it is protected whether the conversation takes place in the lunchroom or via Facebook and Twitter, Solomon says. It is a right given to all work- ers, unionized or not, in the 1935 National Labor Relations Act. In the dealership case, the NLRB's en- forcement office found the salesman's comments about the dealership's food and beverage selections were legally protected because he was expressing concerns about his workplace and the way the low-end fare might affect sales and commissions. An ad- ministrative law judge with the board sided with that conclusion but said the dealership could fire him for posting the accident pho- tos, which had nothing to do with protected concerted activity. "The cases have been fact-specific," Solo- mon says. For instance, NLRB attorneys declined to take up the case of a Walmart employee who was suspended after he went on Facebook to complain about manage- ment "tyranny." The posts were merely an individual gripe and contained no language Complaints or gossip about the workplace that used to be water-cooler talk can now reach an unlimited audience, which is no comfort to companies seeking to protect their image. suggesting that the employee sought to initi- ate or induce co-workers to engage in group action, according to a report by the labor board that includes the outcome of 14 recent cases. The labor board similarly declined to take up the case of a Walmart employee in Arkansas who said on Facebook that the distribution center where he worked should collapse while certain members of manage- ment were inside. NLRB lawyers also reviewed the case of an employee at a Connecticut-based residen- tial facility for homeless people with mental- health issues. Among her Facebook posts was this exchange: EMPLOYEE: Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway. FRIEND: Then who will you tell when you hear the voices? EMPLOYEE: me, myself and I, one of us had to be right, either way we'll just pop meds until they go away! Ya Baby! My dear client ms 1 is cracking up at my post, I don't know if shes laughing at me, with me or at her voices. 38 JANUARY 15, 2012 AA.COM/AMERICANWAY

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