http://www.nytimes.com/2010/11/09/business/09facebook.html?_r=1&emc=eta1
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"The third-rate mind is only happy when it is thinking with the majority. The second-rate mind is only happy when it is thinking with the minority. The first class mind is only happy when it is thinking." (A.A. Milne)
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In what labor relations 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.
Here's a statement from Lafe Solomon, the board's acting general counsel: "This is a fairly straightforward case under the National Labor Relations Act - whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
Really.
Here we have a group of lawyers working for the government (our tax dollars at work) interpreting a law that was passed prior to the existence of such an entity as "Facebook"
and insisting that an individual's rights were violated because a company fired that person for ridiculing an immediate supervisor on (or in) a public forum? Do we have that right? In this case, the board filed a complaint against an ambulance service, American Medical Response (AMR) of Connecticut, that fired an emergency medical technician for violating a "policy" against depicting that company in any way on a social media site. But wait, it gets better. The board also faulted another company policy, one prohibiting employees from making "disparaging" or "discriminatory" remarks "when discussing the company or the employee's superiors and co-workers."
So, let's look at AMR's response: "The employee in question was discharged based on multiple, serious complaints about her behavior. The employee was held accountable for negative personal attacks against a co-worker posted publicly on Facebook."
How does this become a violation of employees' rights to discuss wages, working conditions and unionization (what the NLRB protects)? This looks more like the government stepping in to protect an employee's right to "slam" anybody they want at the "workplace."
And, just a "sidebar" your honor: Morgan, Lewis and Bockius, a law firm with a large labor and employment practice "representing hundreds of companies" sent out a "lawflash" advisory: "Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation..." AMR had a "policy" and it didn't do them any good.
When it looks like a duck, and quacks like a duck ... we're pretty convinced that this is an example of a government agency trying to prove its worth in the 21st century and, instead, proving that it is an artifact of the 20th century.
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I'm not sure I agree with the premise that Facebook is a public forum. The only people who can see my posts are people I've specifically friended. This isn't dissimilar to the water cooler example, except a little broader. Certainly not public. Stupid either way, however.
ReplyDeleteCraig: the problem is that the government wants to step in and protect the right of an employee to slander a supervisor and/or a company no matter what gets said as "protected" concerted activity. Really?
ReplyDeleteFirst off Charlie, I'm impressed that you're commenting about Social Media policies in the workplace :) Very trendy!
ReplyDeleteI think this is just a symptom of a much larger issue - people using technology to be passive in their relationships at work. People say much more disparaging things over more impersonal communication (email, social media, etc.) than they would be willing to actually say in person. It truly blows me away, and on top of that, people are losing their ability to communicate effectively in person.
I think this is also a case of "getting the right people on the bus and the wrong people off" - if you have to have a policy about slamming coworkers on social media, you have the wrong people on the bus.
Either way, I think what you post on Facebook should protected, but most likely it's not isolated to Facebook - you are probably acting out in many other ways that are inappropriate, and Facebook was just one of them.
Also, this won't sound very mature, but you're an idiot for posting things like this on Facebook.
Marcelo: once again, a brilliant input! Thanks so much. To me, slandering others is not a "right" that should be protected.
ReplyDeleteCharlie - To be clear the government isn't stepping in to protect an employees right, the government did that a loooong time ago. The question is whether this protection should apply to online forums with semi-private audiences.
ReplyDeleteAgain, I think it's a dumb move for an employee to do this. However, I think it should be protected, mostly because in general, civil liberties have been steadily dismantled over the past 30 or so years.
Remember this is the same government whose Supreme Court just a year or so ago ruled that a guy keeping silent for 4 hours hasn't exercised his right to silence until he specifically speaks and says "I exercise my right to silence," a completely counter-intuitive requirement.
According to the article, the company has:
"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."
This literally restricts someone from posting anything beyond "I work for X" on Facebook. And remember, the only way this is protected is if it involves multiple employees talking on Facebook about work-related issues with a supervisor. You couldn't, for example, disparage their hairstyle or music preference. It has to be work-related and involve multiple employees.
As I said in my first post I think this is a dumb move to post this kind of stuff on Facebook, either way.
To speak to your last comment specifically, you and the labor board agree, slander shouldn't be protected. However speaking negatively (and truthfully) about a supervisor isn't slander or defamation.
ReplyDeleteCraig: actually, I think using the "number" (was it 17?) that the employee used in this instance, which means the boss is a "psycho case," is a form of slander and highly demeaning in the U.S. business culture.
ReplyDeleteFrom a law website:
ReplyDelete"Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper."
What Ms. Souza said is defamation if and only if what she said was untrue. Being mean to someone, or saying nasty things about someone, if those things are true, is not illegal.
I have no idea if the supervisor has mental problems or not. I suspect for the case to have any legs it will have to prove the veracity of that claim.
Craig: actually, the supervisor may have section 17 problems, I don't remember. But, the use of the term in a derogatory way is is just as defamatory whether it is true or not. I'm saying slander or libel true or not!
ReplyDelete