After a workplace discussion between employees about employees had been discussing concerns about a superior's management style, an employee goes to management to complain about having an unmanageable workload. That night, that same employee posts the following on his personal Facebook page.
Just in case someone needed to know 🤷Employees don’t leave Companies, they leave Managers
At least 90 peple liked the post, including two co-workers who commented in support. The next day the employee was fired for alleged job performance mistakes.
The fired employee files a charge with the National Labor Relations Board, claiming that he was fired in retaliation for engaging in protected concerted activity — his Facebook post.
The NLRB concluded that the employee case presented a credible claim to litigate.
We conclude the Charging Party engaged in protected concerted activity because the Facebook post elicited support from coworkers over scheduling, management, and employee attrition, issues that had been topics of concern for employees.
The post, as written, objectively sought to elicit support from coworkers and other employees—who were Facebook friends and would therefore see the post—regarding the perceived poor management practices that would lead to employee attrition.… [A]t least two of these employees' responses indicated their support for the Charging Party's message that bad management practices lead to a loss of employee morale and employee attrition.… Moreover, the Charging Party's post and the comments it elicited were a continuation of the Charging Party's earlier conversations with numerous other employees about the quality of the Employer's supervision.…Non-text communications, such as emojis and memes, can be just as communicative as text and prose, and when they communicate a message the law treats them no differently. If your employment lawyer isn't conversive in emojis, memes, TikToks, and other newer forms of communication, it's time for a new lawyer. Your employees are speaking like this. You need to understand it, and so does your lawyer.