IT Employment

NLRB judge rules in favor of fired Facebookers in latest case

Two recent court cases illustrate how unpredictable the legal landscape is in relation to firings having to do with employees and social networking.

Further evidence that the legal landscape is a tricky one for social networking cases: A judge for the National Labor Relations Board ruled in favor of five employees who were fired from their jobs at a non-profit for complaining about work conditions via Facebook.

Mariana Cole-Rivera posted a message on her Facebook page from her personal computer that said, "Lydia Cruz, a coworker feels that we don't help our clients at HUB (sic) I about had it! My fellow coworkers how do u feel?" Several co-workers also expressed frustration with their jobs.

Lydia Cruz-Moore, who was mentioned in the message, complained to HUB's executive director, Lourdes Iglesias, about the posts. Her text messages to Iglesias suggested that he terminate or at least discipline the employees. Iglesias fired all five employees who had commented on Facebook.

The case against the posters:

  • The posts constituted bullying and harassment and violated HUB's policy on harassment
  • The posts caused Cruz-Moore to suffer "a heart attack as a result of their harassment," although it was never established that she had a heart attack or that there was any connection between her health and the Facebook posts.

The court ruled against the non-profit, however, because "employees have a protected right to discuss matters affecting their employment amongst themselves, and explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs" is a protected activity.

Compare this one to a recent case in which a reporter for the Arizona Daily Star was fired in April for similar critiques of the paper and the Tucson area. The newspaper first warned the reporter when he posted a tweet criticizing the newspaper's copy editors for headlines appearing in the sports section.  Following the tweet, the reporter was called in by the newspaper's human resources department and told to stop criticizing the newspaper.

He began tweeting about Tucson itself with posts like, "You stay homicidal, Tuscon" and "What?!?!?  No overnight homicide?  WTF?  You're slacking Tucson."

The NLRB found that the reporter "was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so."  While the warnings to him not to tweet about grievances with the newspaper or to criticize the newspaper could be interpreted to prohibit him from activities permitted under the labor law mentioned above, the statements did not constitute overbroad rules by the newspaper and were made "in response to specific inappropriate conduct."

It makes your head hurt thinking about all the gray areas of these laws and policies.

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.

14 comments
HAL 9000
HAL 9000

When you walk into any Court the entire thing is a Crap Shoot. You never know the outcome before the case is ruled upon and most times it depends on other things than what is proported to have happened in the complaint. In this case the person complaining about actions of the staff seems to have gone more than a bit overboard by claiming that they had a heart attack as a result of this and then not having the Medical Evidence to backup that claim. I don't know about others but when I was doing Legal Work and even now when I appear to give evidence I always work on the idea that it's [b]Very Bad Practice to Piss off the Judge.[/b] I've seen numerous cases where a Pissed off Judge choses which evidence to give more weight to and which evidence to ignore. Of course getting listed by any Judge as a Vexatious Litigant who is apt to bend the truth to suit their own ends is never a good thing to have happen. ;) Col

chalicemedia
chalicemedia

1. In the height of passion, type your comment into a text editor. e.g. Notepad 2. Wait five minutes. 3. Read. 4. Consider your audience and possible consequences for you or someone else. 5. Read again - edit if necessary. 6. Would you like this on the front page of the New York Times? 7. Choose between copy-paste to online or the delete key. --- PS, personally learned the hard way... B^)

branchman67
branchman67

Maybe I'm just oversimplifying things here, but I'd say just don't complain about your job online in a place where the comments can be tracked back to you. If you want to complain around the water cooler, you can always deny you said anything later (unless the boss actually heard you). If you post it on your Facebook, it's a little harder to deny. Does it seem like this post is harmful? Not really. But it's probably better to err on the side of caution.

tecuriosity
tecuriosity

The report talks about the NLRB, then states the Court ruled against the non-profit. I assume the writer means the NLRB and not a court. It would be helpful to know the case names - to check out the logic (or not) in each case. Rights are protected when the government makes a move, but those rights are not necessarily protected from the moves of private (even non-profit) enterprise.

stevew
stevew

In the United States of America, you do have the right to freedom of speech; however, there is a law of nature called cause and effect. And laws trump rights.

John_LI_IT_Guy
John_LI_IT_Guy

This is why I don't have co-workers as Facebook friends. Former co-workers yes. I also don't make it a practice to pop off about things at work. There are way too many people on Facebook that need to get a life...

ronmarshall
ronmarshall

Rule #1: Don't be a(n) (tw)idiot. We teach that rule in class all the time. If you wouldn't say what you're about to say to an auditorium of the same people with press coverage, then don't publish it online. 'Nuff said?

spdragoo
spdragoo

Should also apply it to any online communications as well: emails, forum postings, blogs, etc. Of course, then we'd never have to dig out our flamethrowers to deal with trolls...

spdragoo
spdragoo

I think what we should take away from this is that, whether making online or in-person comments, the law is apparently going to be applied equally. As for the "grey area" the author listed, I don't see it. The first group commented about their work conditions... a very common occurrence, I'm sure, in any office. The reporter, on the other hand, was making comments that, had they been made at work, would have initiated an HR investigation for possibly violating workplace violence policies. "You stay homicidal"? Really? That's appropriate to say in a workplace situation? And that's the kicker. Additional information is found here: http://news.yahoo.com/blogs/cutline/no-recourse-reporter-fired-over-tweets-employers-found-185525719.html Apparently, since his Twitter account identified him as an employee of the newspaper, but apparently didn't include a disclaimer (i.e. they were his personal opinions, not the opinions of upper management), they asked him to temporarily stop tweeting while they developed a social media usage policy. This is no different than any office situation when management or HR realizes they need to have a policy to address a situation that hasn't arisen before. The employee's response, however, was to remove his supervisor & managers from his follower list, & continue to make the posts. He deserved to be fired for that.

DPeek
DPeek

"If you want to complain around the water cooler, you can always deny you said anything later" WOW!! Really??? So, just do whatever you want but if you get called on it, LIE??? That is some truly repugnant advice. I guess it WASN'T you I saw crashing that Ethics101 course at the local community college huh?

JamesRL
JamesRL

I have a number of friends at work, some who I socialize with outside the office. But I don't have them on Facebook. Not one. I also don't feel the need to vent my spleen on Facebook. I have many relatives, former co-workers, friends from TR etc on Facebook, and I don't share anything I wouldn't share with the world. If you feel the need to vent, do it in another medium, like email to one or two friends, not your whole facebook universe.

JamesRL
JamesRL

Trolls live for confrontation. They want to get noticed. They would be over the moon if the NYT published their childish rants.

kmoore
kmoore

He was the one getting answers on his final test by texting.

spdragoo
spdragoo

I have this image of Elmer Fudd, M9A1-7 strapped to his back, whispering, "Be vewy, vewy quiet, I'm hunting trolls..."