As reported in the New York Times, the National Labor Relations Board filed a complaint last week against a company who fired an employee for comments made on Facebook. I don’t know about the merits of her case, but reader comments suggest many of us think corporations are above the law. (More)
I guess I’m lucky. I have job security because no one else can fly in the cargo section. Okay, Pootie the Precious could, but BPI wisely decided the news is broken enough without also being delivered in Lolcat. Anyway, I often complain publicly about my travel arrangements and no one at BPI has tried to silence me.
But Dawnmarie Souza wasn’t so lucky. She worked for an ambulance company, American Medical Response of Connecticut. After her supervisor told Ms. Souza she could not have union help in preparing her response to a customer complaint, she posted a scathing complaint about the supervisor on her Facebook page. Among other things, she called him a “17,” the ambulance company’s code for a psychiatric patient. Some of her coworkers read the comments and expressed their support. Some added their own criticisms of that supervisor.
When the company found out about Ms. Souza’s Facebook post, they fired her in part for violating a company policy that forbids employees from depicting the company “in any way” on Facebook or other social networking sites.
The National Labor Relations Board argues that policy violates the National Labor Relations Act, which bars employers from punishing employees who discuss working conditions or unionization. While Ms. Souza is a Teamsters union member, that provision of the NLRA is not limited to union employees. It applies to any “concerted action” of employees in discussing their work, and protects both public and private discussions.
The ambulance company said Ms. Souza was fired based on “multiple, serious complaints about her behavior.” They also said “The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”
An administrative judge will hear the case on January 25, 2011.
This case is not about whether Ms. Souza was a good employee, nor whether it’s wise to post a Facebook message saying your boss is crazy. Some reader comments at the NYT and Yahoo news sites imply Ms. Souza either libeled him by falsely accusing saying he is mentally ill, or invaded his privacy by revealing a mental illness. Apparently these readers take her comment literally, but see the National Labor Relations Act as merely metaphor. For example:
As a boss who was not always loved because I was rigid and rule oriented [….]. Incidently [sic], free speech has limits, when you work for a private corporation, all bets are off and you are an at will employee and we can dump your for any reason we see fit provided we word it correctly and have some paperwork to back us up.
Rigid and rule-oriented except for federal law, it seems.
Freedom of speech means you can legally say what you want to without punishment by law. Losing your job is not punishment by law. It is a direct result of stupidity.
That would be true if this case were about the First Amendment. But it isn’t. It’s about the National Labor Relations Act, which guarantees employees’ a right to discuss their working conditions. But a NYT reader thinks that should be kept private:
The fact that this conversation was public, and not around the water cooler, is an issue in my opinion. On the employee’s part, it shows poor judgment and immaturity.
Ms. Souza may have exercised poor judgment, but the law doesn’t require employees to discuss their working conditions only in private. But that’s just a law, after all:
Seems like common sense should prevail here. No matter what Facebook is, it’s a place where your comments remain visible indefinitely, and they’re linked to your identity. If you wouldn’t post disparaging remarks about your boss on the office bulletin board, why would you post them on Facebook? There’s nothing special about this case. The issue is as old as the sun. You make your boss look bad, you’re gone.
And who needs law when we have common sense, right?
I don’t fully know if this ruling was right or wrong, but I’m inclined to think it’s very bad for society for a board to deem “speaking” on a social networking site with, say, over 400 people as no different from whispering in one’s living room.
So employees should not just keep these conversations in a living room. They should whisper.
This is a business-stiffling regulatory overreach by someone who does not understand how social media like Facebook work.
Protected activity SHOULD be protected — employees SHOULD be able to freely discuss working conditions among themselves, at an old-fashioned water cooler or on its digital replacement. HOWEVER … mostly, Facebook is a public forum; moreover, it’s a forum used by businesses to promote (market, advertise) their operations. It is NOT a place for employees to be circumventing an employer’s marketing efforts in the manner alleged in this case.
So it’s okay for employees to discuss working conditions, but not to circumvent the employer’s marketing efforts. Consumers might find out which companies treat their employees badly, and decide to spend their money elsewhere. Clearly the Invisible Hand of the Free Market was not intended to sweep that way!
But back to another Yahoo reader:
Most all companies today have some sort of policy regarding use of social networking sites. Most forbid using the company name or speaking negatively about the company or its employees. It’s not a violation of free speech.
So the law doesn’t matter if there’s a “company policy.” Which returns us to our “rigid and rule-bound” commenter. His rules are rules and his employees must obey. But as for federal law, “when you work for a private corporation, all bets are off.”
The Supreme Court held in Citizens United that free speech includes corporations. It seems many Americans think that ruling didn’t go far enough … and that free speech should include only corporations.
That makes me grumpy.