Social Enterprise

New case may prevent employees from getting fired over derogatory Facebook comments

A recent case in Connecticut has the National Labor Relations Board ruling that companies can't fire employees for complaining about their boss on Facebook.

A National Labor Relations Board (NLRB) ruling suggests companies cannot fire employees for things like complaining about their boss on Facebook. This ruling was in regard to a recent case regarding an employee of American Medical Response (AMR) of Connecticut.  The case has yet to be fully adjudicated, however.

The employee posted a negative remark about her supervisor on her Facebook page, a remark that drew supportive responses from co-workers. AMR said the postings violated its Internet policies, but an NLRB investigation ruled the postings constituted "protected concerted activity" (activity for the mutual aid and protection of employees, like discussions about wages or working conditions). The company is saying that derogatory remarks about a supervisor do not constitute concerted activity.

The issue at hand was that the company's Internet posting policy was too broad. Legal experts are recommending that companies who don't want to be in this same boat should have wording that specifies disciplinary action if the postings related to the company are discriminatory, abusive, insulting, or false. This will be an interesting case to watch.

We all have strong feelings about our freedom to say what we want. No one wants to live in a society where you can't say anything for fear of repercussions. In this woman's mind, she was sharing a thought the same way she would have if she'd been having a conversation at a restaurant with a friend. What if that restaurant conversation were overheard by someone at the next table who happened to be the brother of her boss? Could she still have been fired?

I think the issue is that people need to come to grips with the far-reaching effects of social media. If you think you that you can share something with 700 of your closest friends via Facebook and that none of is going to spread outside your immediate circle, then you're sadly mistaken.

Another thing is I think a lot of people use Facebook as a passive/aggressive tool. It goes like this: If I don't have the nerve to criticize you to your face, then I'll post some thinly veiled remark about you on Facebook. You'll read it, get offended and say something back. Then, I can swear I wasn't talking about you. You might eventually believe me, but the point has been made. (No, I've never done this but I've seen some crazy stuff just by following a thread on friends of friends Facebook pages.)

The other thing is if this case is upheld and she gets her job back and she is free to snipe at the boss all she wants, what kind of atmosphere can she expect to go back into? I don't know many people who could read criticism about themselves and then not hold some kind of bad feelings toward the person who wrote it. (It's like in all those courtroom dramas where an objection is sustained and the judge instructs the jury to disregard a statement. I never understood that. You can't unsee or unhear something.)

I'm sure this is the first of many cases involving social media that we're going to see.

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.

33 comments
Sterling chip Camden
Sterling chip Camden

The fact that anyone's personal opinion of someone else is considered authoritative enough to cause them harm indicates that the majority of the consumers of this information must be stupider than a box of rocks.

billandl
billandl

The post doesn't make it clear that the NLRB deals with labor union issues Most American states are "at will" which means generally that the employer can get rid of you for any non discriminatory (e.g. race, gender, religion) reason. Other countries see your local solicitor

juantinabroad
juantinabroad

Well what about the border guard in El Paso. He commented on legalizing marijuana and possible effects on the Mexican cartel drug traffickers with a co-worker and was fired for expressing "a position that was not the official departmental position". I know the ACLU is going after the government for this violation of our freedom of speech. Freedom is being eroded left and right.

JamesRL
JamesRL

There was a recent Canadian ruling that stated that the employee had the right to state opinions about their bosses on social networks, but could be fired if an employee made statements that caused the business or work environment harm. The case was regarding employees at a car dealeship who made "disrespectful, damaging and deragatory remarks" including threats and homophobic slurs which created a "hostile work environment". http://www.theprovince.com/Fired+over+Facebook+fuming/3768225/story.html

uwishtoo
uwishtoo

No the company does NOT own my personal time. If I want to go out and get drunk every weekend and pole dance and happen t run into a co worker that doesn't like it - well TOO BAD! Since when did Freedom of Speech end at the workplace door? Now if I go around the company on company time and badmouth my boss then that's not right

uwishtoo
uwishtoo

Did I miss the part of whether the postings were made during work time and from a company computer? That would make a difference in my mind. But if I want to state that I hate my boss or coworkers on my own time then I will do so. Many years ago I had a personal website with some raunchy jokes and some sensual graphics, NOT porn - but to some prudish people it might be to them. Even though this was a personal site I had a comment at the top of each page "THERE ARE SOME NUDITY AND JOKES ON THIS PAGE SO IF YOU ARE EASILY OFFENDED, THEN WELL..... DON'T LOOK" So a co worker who was a self professed "christian" (backstabber) got my site from someone at work and marched into HR to tell them she was offended at my actions and lifestyle (uh google Stephen Hanks and you will see the artwork - it's clearly not porn) and she demanded my termination. HR called me on the carpet and started to read me the riot act and I said uh sorry, but that is my PERSONAL website that I maintain at home on my own time and I didn't invite that person to go look at it and as a matter of fact I didn't WANT her to go look at it. And I walked out of HR ending the discussion. Now, I used to have a program on my computer that alerted me to any IP's trying to gain access into my firewall and lo and behold within a day I got some hits and you guessed it, I tracked the IP back to my company. I printed it all off and went into HR the next morning and handed them the paperwork and told them that obviously me stating the day before that what I do on my personal time in my personal life is my business ad none of theirs as long as I am performing my job - then I told them that if I saw one more instance of them trying to get into my system or commenting on anything I would get a lawyer involved so fast it would make their heads spin. They didn't count on anyone being smart enough with enough resources to find all of this out about them and that was the end of discussion! What I do on my own time and on my own computer is none of anyone's business period!!!!

QAonCall
QAonCall

One could reasonably argue at some point, the person could undermine the authority of the supervisor, to the point that the supervisor could not perform their tasks? If that was the case, whom should get the boot then, the troublemaker, or the supervisor. Most companies offer forums/processes that allow for supervisor feedback. The real question is WHY would you stay someplce you have animosity for? As early as 2-3 years old we tell other the golden rule, and teach children do not write what you do not want other to read? At some point, being grown up, means acting like one. If you use Facebook/social media you have as much responsibility as you do anywhere else in your life. Simple rules in life will help. IOf course READING contractual agreements for employment should be done as well! ;)

sissy sue
sissy sue

to the point where you can't speak your mind about them on your own time and to your own network of acquaintances? Or should you always show loyalty to your employer simply because that's the team you are currently playing on? What loyalty does your employer show you? A good subject with no easy answers....

JamesRL
JamesRL

Do you have a right to diss your employer's position on an issue? If he said it to a member of the public while he was wearing his uniform, it could be interpreted that he was seen to be "representing" the views of his employer, and his employer could take action. If he said it in the lunch room at work and no one else was around, he was expressing a personal opinon. One of my previous employers had a good policy. If we posted something on the net from a corporate account, we had to state that the opinions expressed were personal and not those of our employer.

ThePickle
ThePickle

You seem to be under the wildly-mistaken impression that just because it's YOUR web site, you're allowed to do and say whatever you want, no matter how derogatory / slanderous / libelous it may be to your company or to other people. Yes, you're entitled to freedom of speech and freedom of expression, but there are boundaries that must be respected. In the case of questionable or objectionable material, I agree with you -- your company had no business trying to control what you post. But this story is not about questionable material that may or may not be porn. The story was about a woman who was badmouthing her boss. And as I already pointed out in an earlier post, if you have something to say to someone, say it TO THEIR FACE. Or if you're a coward, write them a letter. But under no circumstances should you be able to badmouth somebody in a position of authority from your company on your FaceBook page. Not only is that immature and stupid, but it CAN and WILL haunt you for many years to come. Think about it -- who in their right mind will hire you when they can see that you make a habit of badmouthing your previous bosses on the internet?

JamesRL
JamesRL

Just because its your own time, doesn't mean you can say what you like with regards to your employer. See the post I made about the Canadian Facebook case. Most employers ask you to sign non disclosure documents, stating that you won't disclose trade secrets to competitors. Those agreements are in force 24/7 not just while you are at work. Equally any employee harassment provisions would also be in force outside the workday. This has been tested about school bullying policies. I agree you have the right to do your own thing with your own website, as long as it has nothing to do with your work. But you don't get any special priveleges just because an offense takes place on the internet after hours instead of the office.

jpratch
jpratch

Some folks don't understand that disrespecting their company and supervisory/management chain typically results in position stagnation (lack of promotion) as well as has negative effects when it comes to annual raises. Even Seasame Street teaches kids about consequences of their actions. Go figure, some folks just like complaining and remaining at the entry level for their whole career!

mfitzpatrick001
mfitzpatrick001

Here's a news flash for all of you. I made a comment to a co-worker in the privacy of my own home one Sunday afternoon. Little did I know that person was a snitch for management. The following day I was called on the carpet and given a written warning. I later consulted with a labor attorney who informed me that in fact the employer was within their rights to repremand me. While the comment was made in my home that conversation was extended to the workplace hence, it created conflict at work. The first ammendment only protects people selectively. I guess the old saying is true, "It's not what you know, it who you b**w."

JamesRL
JamesRL

You don't have a right to committ slander and libel about your employer. You don't have the right to undermine your supervisors authority. You don't have the right to reveal the companies secrets, or make allegations about improper business practises that may harm the reputation of your employer. You don't have those rights in the office and you don't have them outside of the office.

dogknees
dogknees

That (putative) fact that my boss is an a***hole is not a trade secret.

dogknees
dogknees

Some of us consider speaking out about something that we believe is wrong/illegal/immoral/... to more important than progress in our careers. After all, one is about our decency as a human being and the other is just work.

todd_dsm
todd_dsm

The number of d-bags existing in the world that truly believe they will get ahead in the world by brown-nosing is staggering. Don't be so soft or naive. A loud-mouth in the office has exposed himself. These people are useful in certain situations. Now that you've spotted one in it's natural habitat, note it. You know management's sensibilities now. Some people can endure a great deal of criticisms and call it part of the job. Some are small and weak; they just can't take the blow to what's remaining of an already 'tiny' ego. This is a great recipe for making him swallow the company anchor so they can both rest at the bottom... Become adamant, ask the simple questions, "What, I can't have my own opinion, on my own time?" And let them answer. If they get angry enough they will say something regrettable; you will then have them by the short-hairs. In a scenario of mutually-assured destruction you can live out your office life in peace. And, should you clown your supervisor like that, the snitch would live a much different life in the office for having initiated such a painful event. The down side is you could be fired for further insolence :-P Go in peace, but don't be a victim.

SkyNET32
SkyNET32

Not only do I have the right to say whatever I want OUTSIDE of the office, I would think any attempt by any employer to come up with such "policies" treads on the 1st amendment, and would be illegal, whether they be private, public or corporate companies. I predict these cases will go to the US Supreme Court and the 1st Amendment would strike down any such employer "policies". Don't give me that crap either about "if you don't like it, find employment elsewhere" - yeah, cause we all know how easy it is in this economy to just go find another job cause our "feelings" got hurt" Go tell the "Supervisor" if he feels uncomfortable about an employee complaining to go find work elsewhere. Then again, if an employee is complaining about a supervisor, maybe there just might be a reason for it, and then again there might not be, but arbitrarily putting a policy that says YOU CANT TALK SMACK ABOUT US is just plain bulls***. If any company had any balls they'd first get to the bottom of the complaints before just firing an employee

dogknees
dogknees

If those practices are illegal, I not only have the right but the responsiblity to report them. Exactly as I have the right and responsibility to report someone who beats up their spouse to the police. No situation puts you outside the law. No employment contract can remove you civil rights and responsibilities.

nickdangerthirdi
nickdangerthirdi

but you also have the right to your opinion, and if I think my boss is a jerk, what I put on MY page is MY business, not his, this isnt about undermining authority, or revealing the 11 herbs and spices in the KFC original recipe, its about expressing your opinion about someone else, if we live in a free country where we can call the president a nazi, then the companies who do business in that country should have to abide by the same rules. Again, its not like she posted a sign out side her cube saying anything against her boss, she did on the internet, on her own time (supposedly, doing it at work is a different story, they are paying you to get work done, not peruse facebook) and what you do on your own time, is your business, not the company you work for.

bratwizard
bratwizard

While I agree with your sentiment, the reality of the situation is there's a million ways to get fired. So you make your comment and your employer suddenly notices that your performance isn't up to par-- or whatever. There's always some way for them to retaliate. And how can you prove they did? And that's the rub....

JamesRL
JamesRL

You don't have the right to do this inside or outside of the office, and if you do it on facebook about your employer you do NOT have the right to free speech or the protection of the first amendment: 1.Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business; 2.That the charge must be false; 3.That the charge must be articulated to a third person, verbally or in writing; 4.That the words are not subject to legal protection, such as those uttered in Congress; and 5.That the charge must be motivated by malice

Michael Jay
Michael Jay

Oh My, and how do I make my voice sound like that.

NickNielsen
NickNielsen

[i]There are NO limitations to free speech, as much as some morons (not saying you) would like them to be, and have been trying to make for a long time.[/i] I suggest you consult a lawyer regarding slander and libel laws. These laws constitute a limitation on free speech and have been repeatedly shown to be Constitutional. May I also suggest that James was referring to Canadian law and said so.

SkyNET32
SkyNET32

"No one questions the right to have an opinion, its about expressing it." expression of said opinion go hand in hand, that's why its called free SPEECH, not free OPINION" "There are limits to free speech and consequences to your actions. You can be held accountable if you yell fire in a crowded theatre if it isn't true." No, there are not. There are NO limitations to free speech, as much as some morons (not saying you) would like them to be, and have been trying to make for a long time. Your example of fire in a theater is not only irrelevant 1) doesn't apply here and 2)no one goes to the theater anymore :D

JamesRL
JamesRL

Who suggested that if it was the truth it should be able to be published. I guess you've missed the points in the thread where I suggest a simple expression of unhappiness with one's boss, as in the case in the blog, is not grounds for firing. But what I have repeatedly been trying to point out is that there are limits to what you can express. The case about the threats against the boss was a real court case. They were fired, and the courts upheld it. The message is be careful.

capiven
capiven

What you post on your page is your business only as far as it is only about you and does not offend the rights of others. The internet is no different than a newspaper, television or billboard. You are sadly mistaken if you feel that the internet is similar to an intimate conversation among friends in a restaurant or the writing on a piece of paper that you keep in your wallet. What you publish on the internet can be seen very much as slander or libel once it is not protected from the eyes, ears and awareness of others whom you may target for your offensive intentions! In other words, your private business is private and will remain private only if you recognize that you have a responsibility to ensure that it remains private! Shouting out a curse against God in a noisy crowded fishmarket may seem priviate to you because you think that your voice cannot be heard any person standing next to you, however you will be heard by God all the same! Don't do it!

nickdangerthirdi
nickdangerthirdi

Then that means you chose to hire that person, it also means thats you have an agreement with your company not to reveal that information. But we are talking about making a post on their own time, about their dissatisfaction with their boss, on their own page, we arent (at least I am not) talking about making threats(which is already illegal) or revealing corporate secrets, and what is the point of having an opinion if you dont express it, if you dont then its just a thought, not an opinion. And school anti bullying policies are also not the topic here, there is a huge difference between a child enrolled in school making threating comments on a facebook page, and me saying I think my boss is a jerk on mine. If I am not allowed to express my opinion on my own time about someone i work with without fear of losing my job, then we might as well live in a dictatorship....

JamesRL
JamesRL

I'll give you a scenario. I'm a manager. I've had to discipline employees, including written warnings. Its internal policy that both the content of the warning and the warning itself is private, only to be discussed between management, HR and the employee. If I post about the warning I gave on facebook, even hinting about which employee it might be, it could be totally true. But it would violate a lot of corporate policies, and I can and would be fired. In the ruling of the labor board, they upheld that someone can complain about their boss. Thats fair and protected. But there are limits. You don't have the right to say whatever you want.

audreyfarber
audreyfarber

Thanks for the flashback! I'll have to find that burnoose I got from Nancy and stop by to see you...

Dr_Zinj
Dr_Zinj

Firing, or threatening to fire, someone for posting a true statement about an adverse condition at a company that the company has shown itself to be unwilling to correct is both immoral and unethical. Depending on the conditions, it may also be illegal. The problem is, people are usually unwilling to make that kind of derogatory report official until they've received validation for it. And you can't do that without communicating it. Of course this thing is subject to the lack of reports of how many people hold that conversation and are dissuaded from reporting, either because it isn't a real problem, or out of fear of retaliation. Kind of like how you'll never know how many people didn't commit a crime because they suspected the potential victim of being armed.

JamesRL
JamesRL

No one questions the right to have an opinion, its about expressing it. There are limits to free speech and consequences to your actions. You can be held accountable if you yell fire in a crowded theatre if it isn't true. In the Canadian case, they threatened their boss with physical violence, perhaps not directly but implied. And they were aware that both their boss and their fellow employees were Facebook friends and would see those posts. It doesn't matter when you make statements like that. If it has an impact on the work environment, then the employer can take action. There was a similar case a year back about a public school board with an anti bullying policy. Some kids made a group for their schoolmates, and on it they published homphobic and harassing posts about a teacher. One of the students showed the posts to another teacher, and the kids were expelled for violating anti bullying policy.

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