Social Enterprise

Company settles Facebook/NLRB case of employee firing

The case of the woman who was fired after posting derogatory comments against her boss was settled yesterday by the ambulance company who fired her.

The Connecticut ambulance company that fired an employee after she criticized her boss on Facebook agreed to settled the case yesterday. I wrote about the Facebook/NLRB case a couple of weeks ago.

Hughes Hubbard labor attorneys offer some tips for companies creating social media policies in the wake of this ruling.

The attorneys say  that all employers, whether unionized or not, should have their social networking policies reviewed against the following guidelines:

  1. Social networking policy prohibitions should be narrow rather than broad, given that policies containing blanket prohibitions on criticism of the company or its management are now likely to be viewed as overbroad.
  2. However, policies can't prohibit employees from using social networking sites to make disparaging comments unrelated to work.
  3. Distinctions between employees using their employers' computer systems as opposed to their personal computers during non-work hours may be relevant for other purposes but are unlikely to be relevant here.
  4. Social networking policies may prohibit employee statements that are abusive, libelous or obscene;
  5. In defining acceptable employee conduct, policies should distinguish between employee conduct that is rhetorical hyperbole as opposed to conduct that constitutes fraudulent misrepresentations of fact.
  6. Employees may be restricted from anticompetitive, disloyal behavior if the policy is properly worded.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

25 comments
MickiMouse
MickiMouse

Ha, all this is non-issue in Tenn, you are fired and no justification is needed, they can simply eliminate a position without just cause. Do you think someone is gonna say I fired them for badmouthing me? I am free to act as I will, but is it prudent?

chrisg
chrisg

The First Amendment reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

remspect
remspect

Should you get promoted only because you say bunch of good stuff about your boss on FB? Fine line to draw, isn't?

RQV
RQV

Maybe you should say good things about your boss on the FB account. Couldn't hurt in the long run, huh? I might just start doing that just in case. RE: Fine line--that's the way of the world. A tree will bend only so far before it breaks.

DrBort
DrBort like.author.displayName 1 Like

Guidelines are fine, but are there any examples that might help someone craft a better policy? I can't imagine how to craft language to fit #5, and what might be considered "properly worded" in #6? Seems this post could be the first of a series.

kferraro
kferraro like.author.displayName 1 Like

From the article: "2. However, policies can prohibit employees from using social networking sites to make disparaging comments unrelated to work."

robertds1
robertds1

As I read and re-read #2, it says can't, i.e., can not which completely reverses the question you asked. I am hoping it was a typo. I am guessing that aandruli@ assumed you meant can't because it was in the article.

blarman
blarman like.author.displayName 1 Like

Courts have continuously held that the free speech rights of an employee while on their own time depend on several things: whether or not the employee is an agent of the company (normally a sales/customer-facing or management position), the comments made (did they disparage the company as a whole or an individual within the company), and the size and makeup of the audience. Complaining about the company to a client is a bad idea - complaining to your friends is generally considered protected. The courts have generally held that anything you do on the company's time may be restricted, but anything you do on your own time is subject to a very high standard of proof (which gets lowered significantly the higher up you are in management) before it falls under the jurisdiction of corporate policy.

aandruli
aandruli like.author.displayName 1 Like

A company cant require you to be positive about everything and everyone in your free time. On your own free time you are allowed to be negative and dislike whatever you dislike. A company can't require you to like a specific TV show for example.

kstenbch
kstenbch like.author.displayName like.author.displayName like.author.displayName like.author.displayName 4 Like

Speech is NOT free; it has consequences. Yes libel is difficult to prove, and almost as hard to prosecute. However, let's remember that that tends to go for big corporations, not individuals. Remember, if you libel a big corporation, they have the ability to sue you; ruin your reputation, and destroy your career by extension. They are a corporation with an army of lawyers while you spend all of your life savings to avoid trial (because you cannot afford to settle like they can). moreover, they can push for a speedy conclusion which most people can ill afford. Not to mention the damage to your reputation as you are bankrupted and raked over the coals. If you are libeled, remember that those same big corporations can again do what you cannot, and that is bury you in paper work and postpone a trial or quick settlement as you are bled financially and as your reputation suffers. In addition, "settlement" often includes confidentiality, sealed records, no admission of guilt on their part, and the like. This woman may get her job back, but I hope not. I hope she took a financial settlement because who wants to work for a company where management sees you as a "boat rocker" or an "agitator" resulting in a growing, but probably invisible glass ceiling for her. I hope she got her moneys worth, and I for one wish her luck. She was in the right and her employers were just plain WRONG!!!

wjacomb
wjacomb like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName 11 Like

The remarks from the labor lawyers fail to put in the qualification of Freedom Of Speech - no such policy can constrain that and survive regardless of what is said so. Also with regards libelous / defamatory statements, it should be remembered, in most jurisdictions, Truth is a valid defence. Also depending on the jurisdiction the defaming act is not performed by the writer but rather the publisher which wo9uld be the website owner. Also anything that is anti competitive / trade restrictive normally requires compensation. To be quite candid, so long as the comments are not posted in work time, Companies are better off ignoring them or suggesting to the employee that if they are really that unhappy perhaps the company could help them find alternative employement. Consider this, by their behavior the company just highlighted the negative remarks against them - they would have been better off to ignore them.

NickNielsen
NickNielsen

are for government actions, not the actions of a private employer. As for your claim of defamation, are you saying that if I libel you in a post on this site, TR is then guilty of defamation? This may be the case where you are, but the US courts have held that web sites can not be held responsible for posts by third parties. http://news.bbc.co.uk/2/hi/business/6167930.stm http://www.wired.com/politics/law/news/2003/06/59424 The remainder of your post is equally disposable.

JCitizen
JCitizen

to that graduate student who sued a Newspaper for allowing libelous statements from a reader on their web-site? I think you were in that discussion with us - the one about the female being accused of being a pervert for what she wore and what she did to a minor at a shopping mall?

RQV
RQV like.author.displayName 1 Like

Now, I'm not a lawyer but I have had some discussions on the topic about libel re: freedom of speech. First off, as another user stated, Freedom of Speech is not an absolute (see "Yelling FIRE! in a crowded theater"). The Constitution says the Government can't prohibit our 1st Amendment rights, but it doesn't say your employer can't tell you what you can and can't say with regard to work or whether you have to show up on the Sabbath, etc. In fact, employers of telemarketers do this all the time when they give their people a script to follow on the phone. Second, truth is not neccesarily a defense for libel and slander. Your truthful statements have to pass the "intent" test. For example, if the statement was made with malicious intent, it can be considered libel. e.g., "My boss is a whore and a drunk." While it might be true in both cases, if a court finds the statement was malicious and damaged your drunk-whore boss, then you might find yourself in hot water. The same might apply to someone discussing their boss' qualifications if it prevents that person from getting a raise. Intent can vary depending on the circumstances. If you're in a bar with your friends who all hate the boss, you might make either statement (above) and everyone just nods in agreement without a second thought. But it changes immensely if you were to say the same thing at your boss' church or to the parents at the youth sports association where he volunteers as a coach. Regardless, I think the best advice is to always assume that anything one says/writes will ALWAYS make it back to the person it's said about.

herlizness
herlizness

> no, truth is always a defense to claims of libel or slander; the essential element of both claims is publication of a FALSE statement ... no false statement, no claim ....

BrewmanNH
BrewmanNH like.author.displayName like.author.displayName 2 Like

The Constitution only says that the Government can't constrain the freedom of speech. It says absolutely nothing about private citizens abridging that right, or private companies for that matter. If you step into my place of business and start telling people something that is bad about the company I have every right in the world to toss you out of the building. If you work for me and do the same thing, I can fire you. However, I have no right to shut you up if you say it anywhere else, or use a device that I didn't provide to you when you do it. I may not like it, and I may make your work experience a living hell until you quit, but I can't legally stop you unless you are lying, or divulging private company information, then I can sue you.

blarman
blarman like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName 7 Like

Freedom of speech is NOT absolute. You are correct in that truth is a defense in libel, fraud, whistleblower, or slander cases but not in cases of wrongful termination. Instead, the basis of this case was disparagement and image of the employer, which they do have a right to defend. With regards to writer vs publisher, this is a very fine line. Courts have held that social media networks (and ISP's in general) are not responsible for the content posted on their networks unless it is obscene (ie p0rn) or promotes illegal activity - opinions are protected speech. Torte claims like this (wrongful termination) aren't based on either of those two categories, so the author is the only one liable. The one thing that really worked against the company in this case is that the individual is not a supervisor or manager and therefore not an agent of the company per se. As such, their comments - even when posted on social media - are protected free speech to a higher degree. That doesn't mean I'm suggesting this was a smart thing to do. I'm not. Be aware, however, that anyone in a management position is not so protected and has a responsibility to uphold the company's image in the public arena (whistleblower statutes are the obvious exception here). The worker did something in a fit of pique, but since she isn't a syndicated columnist with a broad following, she isn't considered a public figure, so her speech is protected to a higher degree as a private citizen. Her opinions are her own and - even though she published them - they were only available to a small private audience, not the company's clientele base. Further, the company isn't directly being attacked - only the direct supervisor's behavior was criticized, so the company's assertion of disparagement was a reach to begin with. I'm glad the company settled, and the advice to narrow the restrictions on their Internet use policy are good ones.

Arcturus909
Arcturus909 like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName 7 Like

A company could quietly monitor what their employees say about the company and use the information to change policies, flag managers and generally make improvements. It is fairly easy to detect whether someone is simply a "complainer" because work won't be the only thing they are posting negatively about. Help could be put in place for those truly unhappy with work (shift of position/responsibilities/managers). It may still be "Big Brother is Watching" but at least it can be constructive.

Sterling chip Camden
Sterling chip Camden

I think the sense of that term might need to be reversed in its context.

QAonCall
QAonCall like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName like.author.displayName 9 Like

What was the outcome?

JamesRL
JamesRL like.author.displayName like.author.displayName like.author.displayName 3 Like

Educated guess that if the employer settled, they agreed to take her back under the conditions that she not disclose the nature of the settlement. They probably agreed to review the guidelines to prevent a future occurance. They may have made her sign something to prevent her doing the same thing again.