Conventional wisdom has been that you err on the side of caution when it comes to putting anything out there in cyber space, especially if it relates in anyway to your employer. The thinking has been, “you never know when the boss is watching.”
That idea is slowly changing as the government continues to scrutinize employers who fire workers for exercising their free speech rights on social networking sites, especially when it comes to dogging your employer. The way officials at the National Labor Relations Board see it, Facebook and Twitter are no different than traditional water-cooler chatter.
Basically, if workers get together to discuss working conditions at their employer that’s considered protected speech under the nation’s labor laws. So, doing the same on the Internet is no different, the federal agency argues.
I wrote about one of the NLRB’s first key cases on this issue last year for TheAtlantic.com, and the case was being closely watched by worker advocates and employment attorneys.
The agency had filed a complaint
against an ambulance company in Connecticut alleging that management there illegally fired an employee who posted negative comments about her supervisor on her private Facebook page. The agency says that the speech is protected because she was discussing work conditions, and other employees also commented in support on her page.
The NLRB, an independent federal agency that defends employee-organizing rights, is basing the complaint on a long-existing provision of the National Labor Relations Act that provides protections to employees who get together and complain about a host of workplace issues - everything from conditions to benefits. Just because the discussions occur in cyber space doesn’t make a bit of difference, said Jonathan Kreisberg, the NLRB’s Regional Director in Connecticut.
“You have the right to communicate with your fellow employees about all your terms and conditions of employment,” he said. “The fact that it was done over Facebook makes it unique but not unusual based on case law.”
The employer settled that case and it marked the first major victory for employees in this regard. Now the agency is back for more.
Yesterday the agency announced a complaint against a Buffalo, NY, nonprofit alleging:
that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues.
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.
The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.
It’s the latest salvo in what could be a big battle over workers’ speech rights. But don’t let the NLRB’s action make you think you can say anything you want. While things you say about your workplace or your boss may be protected, if you’re divulging company secrets, or just blowing off a little steam about goings on in the office, you may not have immunity. And if you say something a manager doesn’t like that’s outside of the scope of work, you can still be fired for that in many instances.
While state and federal employees, as well as union members, offer some protection when it comes to free speech and work, most employees don’t often have a leg to stand on. Only four states — California, New York, Colorado and North Dakota — have some protections for employees who get involved in politics away from the office or plant, but even those laws are limited, legal experts say.
In addition to the NLRB’s crackdown, some state legislators are looking to pass laws that protect workers rights to say what they want on the Internet, but for now, think before you tweet.
May 19th, 2011 at 5:42 pm
Eve, I’ll try to offer what I consider to be a proactive and effective take on this topic.
This is the advice I would give my children or any of the individuals I coach. it is the advice/philosophy I use personally.
While you may be in your “right” to bitch online about your employer, don’t! It is foolish and is typically more reflective of your lack of restraint than anything your employer might or might not be doing that you like or dislike.
Employees who feel the need to bitch online, or bitch over a drink, or bitch almost anytime about their employer, are largely and typically part of an us vs. them mentality that has a serious career limiting affect.
Truth: Most managers are there because they worked better and smarter, not because they brown nose or had “an in.” Unless brown nosing means, being decent, hardworking, and effective at dealing with the varied personalities and situations that arise at any/every job.
Truth: A job is simply an agreement between two parties who trade value; the employer and the employee. If you don’t like the agreement, either a) change it, or b) find a new one. But first, ask yourself whether you provide the greatest value with the best attitude of anyone at your company. If not, improve your value/attitude-quotient.
Reflect on your experience at any place you’ve worked. Who does the best - career-wise and financially - those who bitch at lunch and/or online or those who don’t? If the only people you go to lunch with are bitching… find new lunch buddies.
Simply put, critiquing, whining, and moaning is easy because it is the mentality of the average.. My advice, strive beyond mediocrity.
May 19th, 2011 at 5:50 pm
I agree with much of what you said Matt. Just bitching about work gets you no where.
But the issue in this case, and what I think the NLRB is trying to protect, is employees making a concerted effort to get better working conditions. I know most workers don’t want to think of themselves as a collective group, but they are and with that have the right to discuss problems they face in the workplace when it comes to things like pay, or safety, etc. The law as I understand it wants to defends a worker’s right to do what they can to get better working conditions. Legislators realized workers didn’t have a voice against powerful corporations and wanted to ensure they had a voice so they weren’t exploited.
Just bitching because you like to bitch doesn’t help anyone, but joining with co workers for better work conditions should be protected and encouraged.
May 20th, 2011 at 9:56 am
Matt,
Perhaps you work in a better company than most. I’ve seen far too many businesses (especially mid-sized enterprises and smaller) where decisions were made and positions awarded based on DBAs (drinking buddy alliances), often to the detriment of the company.
I agree with you in concept, grousing about a job–especially in a public place or forum–is not a wise move. However, I do believe everyone needs to be able to grouse about those things (at work or home) that get under their skin, because stuffing those feelings isn’t healthy. Often, people just need a chance to vent their frustrations, thereby allowing them to vent the negativity so they can get back to being productive. Doing so in the privacy of one’s own home, or in the privacy of a closed online community, is one thing, but posting such comments in a publicly visible forum is another.
Unfortunately, many don’t take the time to understand the privacy settings of the sites they use. Even those who make their profiles largely private often fail to realize that comments they post on their friends’ walls (using the Facebook term, since Facebook is the largest social network at this time) can show up when people search for them. So, if someone searches for you, the content on your own wall/pages may be protected by your privacy settings, but comments you made on your friends’ pages may well show up. If that’s where you’re posting your work complaints, it would be life confiding in a friend at a bar who immediately goes out and tells everyone he meets about what you just discussed.