Labor Board: Facebook Statements By Employees Are Protected Speech

New York Times:

In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page.

This is the first case in which the labor board has stepped in to argue that workers' criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.

The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company "in any way" on Facebook or other social media sites in which they post pictures of themselves.

Read the whole story: New York Times

Comments

[Sarra Rohr]

03:42 PM on 11/15/2010

GOOD! I hope to GOD they make this illegal and such. I got fired cuz I statused that I had a fever and laryngitis and that work wouldn't even find anyone to cover for me. And I work in FOOD prep, handling and taking orders. O_O
So yes, freedom of speech and rights to say what we want does NOT extend PAST WORKING HOURS. Go Labor Board. PLEASE take this as high up as you can. If I want to say my boss is a lazy pig who makes all the employees do all the work while he/she sits on their butt all day, IT IS MY RIGHT to do that. I am NOT employed 24/7. This is NOT the military, cia, fbi, govt etc where all you say HAS to be monitored 24/7. I was at a stupid gas station/store for petes sake. I do NOT like having to hide my real me and lifes woes just cuz my future/past bosses are sissypants who think ppl talk about them and are paranoid. MAKE THIS INVASION OF PRIVACY ILLEGAL FAST. i hate big brother more and more now. This is similar to China and N. Korea govt hiding the net from their citizens. Soon it will be here too. This is the start. Watch.

[carbolaw]

01:42 PM on 11/09/2010

People need to understand the full context of this ruling.  This is an NLRB case - therefore it deals with the NLRA.  What this ruling does is extend to social media discussions the same types of protections you have in spoken word.  Under the NLRA employees have Section 7 rights, these are rights to engage in concerted activity for the mutual gain, aid or protection of employees - or to join or form a union.  These rights include complaining about working conditions, in fact these complaints are quite often the basis for an organizing drive.  This ruling protects such complaints that are made on Facebook.  It does not mean there is any extension of the First Amendment to private employers or that any speech that falls outside of engagement in Section 7 rights would be protected.   So the message to facebook users is to still be careful. HR people have been searching these social media sites for years and there is new software that will make this even easier.  Not all speech is protected and in fact what will be considered Section 7 speech is not a bright line test.   If you want true privacy protections the best thing you can do is to actually form or join a union to negotiate a CBA with your employer that provides such protection.  Another alternative is to reach out to your representatives in Congress to support bills that protect employee privacy.

[BluebirdofUnhappiness]

08:48 PM on 11/09/2010

You are so fanned for all your comments on this thread.

[poster1122]

01:37 PM on 11/09/2010

I'm not sure the board fully understands the can of worms it may be opening up.

This case seems rather harmless. But what about the worker who complains on his Facebook that his boss is a cheap Jew? Or that his coworkers are lazy Mexicans? How about opining that this or that department does bad work because it's headed by a queer f-g? These are all opinions/criticisms of the workplace too.

So, what does an employer do when an employee writes on his facebook page that he thinks black customers bring down the cachet of the place? Certainly, I don't think that employee gets put on the promotion track, most especially if the facebook post is well known throughout the organization. But isn't that too implicitly punishing him for expressing his opinions outside of work?

I'm not saying I have any magic answers. But I think it helps to look at the downsides of the board policies as well to get a better grasp of the problem.

[carbolaw]

02:11 PM on 11/09/2010

This does not apply to any of your examples.  This simply expands the same type of Section 7 activities protections that are afforded to spoken words to facebook postings.  This is not a protection of slander, discriminatory or hate speech, disclosure of trade secrets, or even an expansion of First Amendment rights to private employers.  This case really is not about the substance of the speech, it is about whether the form of the speech - ie facebook postings -  is a form that would fall under Section 7.

[ejwingsfan]

01:23 PM on 11/09/2010

It has been my experience that you RARELY make true friends at work. I would never "friend" a co-worker because trusting that person to handle what you say on FB is just too dangerous.

[bnyb]

01:27 PM on 11/09/2010

My experience demonstrates that your experience is not entirely representative of society.

[ejwingsfan]

01:38 PM on 11/09/2010

Never said it was, just stating an OPINION.

[ehorth]

06:38 PM on 11/09/2010

In today's age of facile communicating with Facebook, maybe making friends at work is more problematic, but I have to say that some of my best friends that I've had over the last 30 years have come from work. Like any friendship, you need to know what is real and what is surface.

[WurrdUp]

05:59 AM on 11/10/2010

Good for you. I've found that co-workers don't know me the minute we no longer work together despite YEARS of lunching and laughing. In the end, I felt that they were fishing for info to gossip about, and some were envious. Good riddance to them, and with my new co-workers, I never trust them further than I can toss a stick. They are people I have to co-exist with during the day. Period. My friends and family are from childhood.

[StansDad]

01:21 PM on 11/09/2010

Three cheers for the first amendment!

[Simon Tetley]

12:22 PM on 11/09/2010

Sigh.
There is a difference between private and public. If you and a few of your friends get together and talk... that's private. If you stand on a soapbox in the middle of a city square and yell until your lungs are soar... that's public.
Facebook is thye world's new soap box.
If anybody out there is stupid enough to still think anything you post on the internet is private please join us in the 21st century.

[Skeptical Patriot]

12:48 PM on 11/09/2010

completely agree.

[No1 ILoveLucyFan]

12:38 PM on 11/10/2010

F&F. Facebook is a dangerous convenience.

[rmoltaban]

11:52 AM on 11/09/2010

as an employer, i would not fire anyone for this. I would on the other hand encourage the manager/supervisor to personally sue that employee for defamation of character/slander. This employees publised actions caused me to loose credibility with my team and employer and thereby made my position and role as a manager ineffective. YUP, I would definately sue sue sue. this would be a private cause of action and the labor board would have nothing to say about this.

[lrobb]

12:17 PM on 11/09/2010

Hon, it is not slander if it can be proved as true.

If you are an employer, perhaps you should have an employee profile all your human resources people understand.

[thepoliticalcat]

03:43 PM on 11/09/2010

Go right ahead and advise. Suing people is often not the best way to deal with most issues, and there's nothing like a little lawsuit in the workplace to create real incentive for workers to do their best, or to boost morale. Not to mention what happens when, as in this case, the plaintiff discovers that the defendant has certain free speech rights and courts are likely to uphold same, leaving your advisee some thousands of dollars out of pocket and working next to at least one disgruntled employee.

[carbolaw]

11:29 AM on 11/09/2010

So many of these comments from some posters on here show exactly why we need more union organizers in this country. Time and again we have seen that the only path to fair treatment for employees has been to organize. If not for the labor movement we would not have the weekend, the 40 hour work week, the Fair Labor Standards Act, the FMLA, and even the Civil Rights Act. Employers invading your privacy to make employment decisions is simply not right, but it is not unlawful. This NLRB ruling only applies to Section 7 activity - this does indeed include complaining about your employer, working conditions, etc, but only applies to employees under the Act. This does not protect you from this invasion in pre-employment decisions, and HR people are indeed using searches of social sites to make employment decisions. It does not protect you from other speech being used against you - political speech, pictures of what you did on the weekend, etc. Further, thanks to recently developed software this employer invasion will be much easier. If you think this is OK, then do not worry about it and move on. However, if you think that employers are stepping over the line, now is the time to take action. Form or join a union, engage in concerted activity start a local social movement. If you are a student consider organizing as a career path. Be aware that since the decrease in union density in the 70s, the conditions for the majority of American workers has suffered tremendously. Workers no longer share in the productivity gains of their employers. More and more employees are considered exempt under the FLSA and supervisory under the NLRA and thus lose two of the most important protections in the US. Wages have stagnated for the past 30 years, including 8 years of decline under W. The only gains for household incomes in that time have been due to increased hours worked and additional workers in households. At the same time employers have done quite well. By 2006, Corporate profits were the highest percentage of GDP since 1929 and wages were the lowest percentage of GDP since this same time. The growing inequality of the past 30 years coincided with the decrease in union density, just as the increased equality and the building of the middle class coincided with the growth in union density in the 40s, 50s, and 60s.

[rmoltaban]

11:57 AM on 11/09/2010

where have you been for the last 20 years? probaly under a rock. the unions aren't there to help anyone. their sole purpose is to organize in order to bring in union dues. they have unions thugs on the payroll that need to get paid. they have underfunded pension plans that need to be re-plenished. the unions of today are much different than the real unios of old. the ones that actually cared about the employees and stuck by them. now, its just about which union has more power, infighting among themselves for positioning, and getting more members at all cost. the unions are dying and it can't come soon enough!!!!

[carbolaw]

12:59 PM on 11/09/2010

IN the past 20 years I have worked on both sides of the table, I have represented employers, employees and unions.  I have worked with Fortune 50 companies and I have seen how their greed, not necessity led to the offshoring of jobs.  I have also spent time intimately researching labor issues including completing a dissertation.   Unions are nothing more than collectives of employees, they are the MOST democratic institution we have today.  In every union each member has one vote- one person, one vote.  Voting rights are not based on money, power, etc. If employees are not happy with their union leadership they can vote them out.  If employees do not want to be a part of a national, regional or state level union they can form their own independent union.   The labor movement is far from perfect and there have been mistakes, but they are the last remaining true representatives of the working people of this country.   To rely on your employer whose sole interest is the bottom line is naive at best.

[dollyllama10]

07:19 PM on 11/09/2010

March 25, 2011 will be the 100 year anniversary of the Triangle Shirtwaist Factory Fire. Look it up.

This is why we need worker protections, this is why we will ALWAYS need worker protections. Don't for an instant think it can't or won't happen again. You only need to look at our mine workers, our farm workers, our factory workers and even many of our office workers of today. There are injuries and deaths, still, every day in this country from unsafe work places and employers cutting corners.

Just because something hasn't happened to YOU doesn't mean it isn't happening.

[tinyrainbows]

11:59 AM on 11/09/2010

Unions have destroyed the middle class by driving jobs out of this country.

[lrobb]

12:20 PM on 11/09/2010

Actually, what we need is a free market alternative to unions.

[QuietClass]

12:43 PM on 11/09/2010

So, we should all just continue to take less and less money for the work and skill we provide so that the bottom line can get fatter, the CEO and executive wallets can get stuffed faster, and profits can dominate all that we think and do. Right? Where does it end?

Giant corporations and conservative policies have destroyed the middle class, as intended. Big business CHOOSES to put out of business every small competitor, then raise their product prices in the anti-competitive environment they create, and last they CHOOSE to outsource those jobs to foreign soil so that they can make more profit from the same people they just put out of business.

Get it? The middle class IS America, without us there is not a society. One of our only defenses against the giant international corporations (which by and large are the ENEMY of the American people) is our ability to sue them as a collective for their malfeasance (that one is currently under assault by our Supreme-ly Conservative Court) and the other is our right to organize and demand rights.

Without those two avenues for recourse, we take one step closer to plutocracy. No middle class or upward mobility, just the wealth class and slave class. A society where you have no rights as a worker, except to work. When you can't, you are cast aside because you have no other value to the ruling class.

Workers must revolt soon, it is the only way.

[commonsense333]

11:00 AM on 11/09/2010

Your darn right it's protected speech. If I talk to someone at my local grocery store, and I am talking smack about my job, and I am off work, then the job can't do squat about it. Facebook is the same principle, it's a public forum just like a bar or whatnot, just a different medium. You can't legally fire someone because what they said on Facebook ticks you off.

[lrobb]

11:03 AM on 11/09/2010

If the woman two carts in line behind you is your boss's wife, you have a problem. Ill will is difficult to redeem.

Has it ever occurred to you that figuring out what your employers want and giving it to them for a fee is what commerce is all about? If you work for a jerk, fire the jerk! You are only a doormat if you let yourself be.

I fired two employers before I started my own business.

[amdezurik]

11:35 AM on 11/09/2010

have you ever thought that some bosses are bullies promoted via the Peter Principal?

[Jeremy Urbach]

11:49 AM on 11/09/2010

If you are talking smack about your job than maybe you should look for work elsewhere? career change perhaps?

[RachelMc]

12:54 PM on 11/09/2010

in the mean time do your job to the best of your ability and live your life freely.

[Sarra Rohr]

03:50 PM on 11/15/2010

Everyone has crappy days and everyone has been in the situation where the boss/fellow workers upset em or do something to ruin the day. And you GOTTA vent. If you can't vent to your friends n such on facebook, what else do you do? Write a letter and mail it to em? Next thing ya know, they'll be opening our letters and reading em like they supposedly do in prisons just to make sure we're not talking bad about our jobs. We have a RIGHT to complain if we are upset. Just cuz you have a bad freakin day doesn't mean you dont want to work. Good lord man. MOST people LOATHE their jobs but do it cuz it keeps a roof and food and bills taken care of. O_o

[tinyrainbows]

10:51 AM on 11/09/2010

I've owned companies and I have run others. I haven't gone to social sites to see if anyone says anything, but if I catch someone saying something about me or my company on Facebook...there is no way in the world I would fire him. I would keep that guy and make him as miserable as possible for as long as he can take it.

[lrobb]

10:51 AM on 11/09/2010

Exactly!

From another small business owner.

[carbolaw]

10:54 AM on 11/09/2010

Then you would also be violating the NLRA.  Mistreating employees for engaging in the Section 7 RIGHTS is also discrimination under Section 8(a)(1) and 8(a)(3)

[J0E1]

10:59 AM on 11/09/2010

Bingo, if they can prove it, kiss your "small business" goodbye.

[lrobb]

11:00 AM on 11/09/2010

You missed tinyrainbow's point.

It is not illegal to assign a difficult client to an employee or give him/her a project which he/she has said she wanted and was not previously considered for because he/she was inept because you WANT him/her to fail and thus have an excuse to fire.

Since when is rewarding stupidity illegal? The government does it all the time. And then censoring when stupidity doesn't make the grade. As we have just seen last Tuesday.

[Epiphany2b]

10:40 AM on 11/09/2010

I know someone who worked at a hospital in Kansas City. Shortly after his last review, in which he was given glowing reports, a new supervisor was hired, and he was let go three weeks later. The reason? His written reports were not thorough enough. He asked for a meeting, which was granted, but the outcome was them telling him they didn't even have to give him a reason. He was the highest paid and most qualified technician in his department, which was probably the real reason. Got a much better job rather quickly, so it was all good.

Just saying that it doesn't always matter what you do, if they want to let you go they will find a reason, as flimsy as it might be. I wonder who gets the job of monitoring social network sites???

[carbolaw]

10:41 AM on 11/09/2010

Which is why all workers need a union. It is only by being a member of a union that employees in the US are ever assured they will only be fired for "Just Cause."

[lrobb]

10:48 AM on 11/09/2010

All workers need to understand how to function as part of a team. The Japanese are far better at this concept than are we.

If all employees are focused like a laser on targeted outcomes--sorry I don't know how to say this any better--everyone's salaries/wages should improve.

I realize there are a few bad apples/employers who are only concerned with their personal portion of the bottom line. This does not describe 95% of employers because this economic model is self-defeating.

There needs to be a better system than unions--which are the equivalent of swatting a gnat with a patriot missle--for bringing the bad actors back in line.

[J0E1]

10:48 AM on 11/09/2010

and to insure that employers can't fire under achieving employees because often times that is not considered 'just cause'

[J0E1]

10:49 AM on 11/09/2010

He would have a strong case for a lawsuit.  People refuse to take this route and companies continue to pull this crap because they get away with it.

[Kris Bui]

10:37 AM on 11/09/2010

Interesting.... I made some direct comments in an email (my PERSONAL email) about a man I was working for (who owned the company), which were TRUE and some nimrod, who I thought was my friend, forwarded it to my boss' secretary, who printed it out and gave it to him to read. I then got fired. True story.

[carbolaw]

10:39 AM on 11/09/2010

If the person you forwarded this to was a co-worker and you were attempting to engage in activity for your mutual aid or protection, you may want to contact your regional office of the NLRB. Did you activity fall into the definition below? 

Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

[lrobb]

11:13 AM on 11/09/2010

I have to ask....

1. Did you send the E-Mail to the aforementioned nimrod or someone else?

2. If someone else, was that person your BFF since kindegarden?

3. If not your BFF since kindegarden, WHY in the name of common sense did you send the E-Mail?

[lrobb]

10:30 AM on 11/09/2010

Facebook is a public site with some security provisions. Common sense dictates that if you would not say it for publication on the front page of your local newspaper, don't say it on the internet.

We are in a right-to-work state. As a small business owner in a legal services profession, I am well aware of my employees' rights to self-expression. However, they also know I am computer-literate with a facebook page and a blog. I also know how to find anyone on the net, as do my employees, because it is a part of our profession.

My employee handbook states the following:

Computers and the Internet:

While it is your right to say anything publicly not governed by our privacy clause, your supervisor and senior management are highly computer literate. We check your work-based computer randomly. We also go on the net, and, being human, check to see what is being said about ourselves and the company.

If you believe you have been unfairly passed over for a promotion or your work is being overly scrutinized, think about what you may have posted on the web. Even supervisors and upper management have feelings which can be hurt and prefer to work with people who are team players.

Being polite in all forums to your co-workers, supervisors and senior management is just common sense.

[carbolaw]

10:35 AM on 11/09/2010

However, if you use Section 7 concerted activity to punish, discipline or fire your employers then you have committed an Unfair Labor Practice.  If your employees decide to engage in concerted activity on Facebook, this ruling has made it clear that this is protected the same way such actions are protected face to face.  Employees indeed have a right to engage in concerted activity in attempts to form a union or otherwise for their mutual aid and protection. This has nothing to do with any privacy laws - they have the right to do this in the open, in your full view and if you take a negative action you have violated Section 8(a)(1) and 8(a)(3) of the NLRA.

[lrobb]

10:42 AM on 11/09/2010

Hi! Overkill a little. I have 8 employees.

I am in SC, and no one in the legal services professions is about to unionize.

My employees can engage in anything they so choose provided it is legal. However, they have to understand that if Employee A ticks off the boss and Employee B helps the boss, Emoployee B is going to get promoted.

By "helped" I mean "assist the company to move forward" not as in "take her dog to the vet."

This has nothing to do with ki$$ing derriere and everything to do with being an integral part of a focused team. An internet post dissing the company, the supervisor or other employees does not move us forward.

[horsesforever]

11:44 AM on 11/09/2010

in others words, don't hurt my feelings or you will be fired...this country is so thin skinned it is unbelieveable...as an employer, not everybody you hire will like you or your policies..but to possibly fire someone because your feelings hurt..OMG Not everybody likes everybody all the time..also I think you are threatening your employees about being "computer literate". in other words we can spy on you 24 hrs a day..which I consider stalking, waiting for an opportunity to strike...personally I wouldn't want to work for you...

[ehorth]

08:12 PM on 11/09/2010

Well said. Your point is my idea also, being in the positions they are, as employers and/or managers, grousing comes with the territory. Since hierarchy in businesses is often compared to the military, when has not a private complained about the officers?

Fanned.

[stonefeet]

10:13 AM on 11/09/2010

doesn't make one bit of difference if you are in a right to work state (like mine is) where you can be fired for anything and everything without reason. totally awesome rule /sarcasm

[carbolaw]

10:25 AM on 11/09/2010

Actually that is not true.  Right to work states give you a chance to complete opt out of being a union member, even if a union wins a certification election.  However, what you are really concerned with is the Doctrine of Employment at Will - this applies in every state except Montana.  This is the Doctrine that underlies the employment relationship in the US and is based on a rather questionable Treatise (Woods Treatise).   However, over time exceptions have been made to this Doctrine - these are the reasons that employers cannot use for firing an employee.  Engagement in Section 7 rights under the NLRA is one of those exceptions.  This case simply states that engaging in Section 7 concerted activity is the same if it is done on Facebook as it is person to person.  This ruling DOES not protect all forms of speech on facebook, only that speech that would be considered engagement in Section 7 rights (i.e. concerted activity for the mutual gain or protection).

[lrobb]

10:34 AM on 11/09/2010

Fanned for accuracy.

[J0E1]

10:53 AM on 11/09/2010

Just because you CAN doesn't mean you will or you can't win a lawsuit.  Though it says employers can fire you for any reason or without reason it really isn't true and has limitations.

[Biff Stiffley]

09:55 AM on 11/09/2010

Good. My problem was that I worked at a "Christian" company, and I believe in LGBT rights, and argued and "liked" that position in Facebook. While I was not friends with my boss, my account was not as secure as it has since become (I missed upping some of my security settings). I cannot prove that is why I was let go, but I a pretty sure of it.

[carbolaw]

10:28 AM on 11/09/2010

Just a caution - please keep in mind that this ruling is under the NLRA.  It only applies to speech that would be considered to be a concerted activity for the mutual benefit, aid or protection of you and your co-workers - in other words the engagement in your Section 7 rights under the NLRA.  This ruling does not protect any form of speech on facebook that would not be protected face to face.  If you are simply making political statements and you do not have a state law protecting these statements, this NLRB ruling does not expand any protection to you.

[Biff Stiffley]

10:45 AM on 11/09/2010

Thank you for the warning.

[Epiphany2b]

10:30 AM on 11/09/2010

Don't you have to wonder who, at that company, had the time to check out the FaceBook pages of all their employees to find out what their thoughts are? Or did one of your "friends" rat you out? I always wondered how they got into private pages, but I did hear of one company who made it a part of their employment conditions that they hand over all their passwords.

[carbolaw]

10:37 AM on 11/09/2010

keep in mind their are actual new programs/software whatever you want to call it that makes this very easy for employers as well as anyone else who would want to search these sites.  HR people have been doing this for several years in making employment decisions.  This case only protects concerted activity under the NLRA (i.e. engage in one's Section 7 rights).  It does not protect pre-employment activity, slanderous speech or political speech.

[J0E1]

10:54 AM on 11/09/2010

yea... anyone that works for an employer that requires personal passwords is a complete idiot.