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Disparaging comments by workers may be protected speech

Employers in California and around the country may be wise to seek legal counsel before taking disciplinary action against workers who post disparaging comments about them or their products or services on workplace bulletin boards or on social media platforms like Facebook or Twitter. Courts and the National Labor Relations Board have generally viewed such statements as protected speech when they are made during an ongoing labor dispute and contain at least an element of truth.

A March 2016 case highlighting this tendency involved workers at a number of sandwich restaurants owned and operated by a particular franchisee. The workers in question posted signs on company bulletin boards and in the restaurants concerned claiming that the sandwiches offered for sale may have been made by sick workers. The workers placing the signs filed a wrongful termination grievance after being fired, and the NLRB determined that the strict call-off policy in place at the stores added a degree of truth to the workers' claims that they were not allowed to call in sick. A federal appeals court subsequently affirmed the NLRB decision.

Other instances of disparaging statements made by workers being considered protected speech by the courts include housekeepers who claimed that their employer was diluting cleaning supplies and construction workers who said that their employer would not be able to complete jobs on time. The NLRB ruled against the employer in each of these cases because the workers making the statements were involved in a labor dispute at the time the statements were made.

Employment law attorneys may be able to provide advice and guidance to workers who are thinking about making disparaging statements about their employers. While such statements may be protected by labor or whistle-blower laws in certain situations, they may not be protected if they are not made during an ongoing labor dispute or are untrue or overly malicious in nature.

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