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.