Can you legally fire an employee who butt-dials you while talking smack about the company…to a co-worker?

I have trained you well. We’re gonna cut the ropes to let you fight Tong Po.

(Maybe, going with a random Kickboxer reference wasn’t the best metaphor for this audience.)

Ok, let’s start over.

Yesterday, I had this post about a guy who allegedly lost his job over an errant pocket-dial (is there any other kind?) to his boss. The timing of the pocket-dial was rather unfortunate. You see, multiple published reports indicate that, during the pocket-dial, the pocket-dialer told his wife about how much he disliked his boss.

Ouch, baby. Very ouch.

Well, a bunch of you emailed and messaged me with similar versions of the following scenario:

“Eric, let’s assume that husband (pocket-dialer) and wife are co-workers. Can either of them be fired? Isn’t the conversation protected concerted activity?”

The National Labor Relations Board enforces this federal law called The National Labor Relations Act. According to the Board, the Act “gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.”

The Act applies in most private sector workplaces, even where there is no union!

So, two employees (even husband and wife) talking about working conditions should generally be protected from reprisal.

However, the Act does not apply in the public sector, which is where the pocket-dialer in yesterday’s post worked. State law varies on whether public sector employees have the right to engage in protected concerted activity. For example, no such luck in the State of Washington. I don’t know about the State of Georgia, which is where our pocket dialer worked.

Additionally, the pocket dialer didn’t sue his employer. He only sued his boss, individually, for invasion of privacy. Whether the pocket-dialer engaged in protected concerted activity does not impact that claim.

But, don’t let this nuance take away from how proud I am of you!

I’m so proud!