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Tuesday, August 2, 2011
Should People be Fired over their Post on Facebook?
The federal agency tasked with enforcing labor law has been fielding complaints from workers across the country who have been fired or disciplined for their work-related indiscretions on Facebook. Although the feds have taken up the cases of a number of jaded workers, others have essentially been told they have no one to blame for their workplace troubles but themselves.
That includes a Walmart worker who referred to his manager as a "puta" -- Spanish for "whore" -- on the social networking site after a spat over store displays, as well as a frustrated Illinois bartender who took to Facebook to air his desire to see the "redneck" patrons on the other side of the bar "choke on glass" as they drove home drunk.
The latter worker was canned and the former admonished for their respective online outbursts, andboth appealed to the National Labor Relations Board (NLRB) in hopes that their employers' actions would be deemed unlawful. In both of those cases, the NLRB declined to issue complaints on the workers' behalf, essentially saying the punishments were legitimate.
Like others that have preceded them, the two cases give workers, managers and lawyers a better idea of where the labor board stands in what is still a largely unexplored area of employment law. Although the NLRB deals primarily with issues surrounding union elections, the board has stood out in recent months as an agency willing to grapple with the question of when firing someone over a Facebook missive is fair game.
"The NLRB is the one making big splashy decisions, and people are drawing conclusions from those," said Tina Hsu, a lawyer specializing in employment and social media at Shulman Rogers in Potomac, Md. "They seem to be trying to discern whether private or non-work postings are having an adverse effect on the workplace. That's a difficult or blurry line to draw."
"It's new territory," said Nancy Cleeland, spokeswoman for the NLRB.
Cleeland said the agency received "several dozen" pleas from fired or otherwise punished workers in the wake of a complaint the board issued last fall in a Facebook case. Because of the inundation, board officials have asked that the NLRB's regional offices steer any Facebook cases toward the agency's Washington headquarters, where the general counsel is currently drafting a report that will outline certain Facebook scenarios and how the board has acted upon them.
"It's to give more guidance and to help employers understand where we're coming from on these," Cleeland said.
In the case from last fall, an employee at a Connecticut ambulance company was fired for knocking her boss on Facebook. "Love how the company allows a 17 to become a supervisor," Dawnmarie Souza wrote, "17" being an insider's term for a psychiatric patient. The company, American Medical Response, had a policy that forbid employees from criticizing the company online. The NLRB took up Souza's complaint, arguing in part that such a policy was too broad.
In its complaint, the board's counsel said that Souza's online griping amounted to "protected concerted activity," for which, under American labor law, an employer cannot fire a worker. The agency basically argued that the Facebook chatter was no different from workers gathering around the water cooler to discuss working conditions. The case was settled in February, with American Medical Response agreeing to no longer punish employees for such online discussion.
The agency has applied that virtual water cooler argument to a handful of other Facebook cases, including that of a Chicago-area car dealership worker who was let go after criticizing his employer. The employee mocked management for serving hot dogs from Sam's Club at an event designed to promote a luxe new BMW model. The NLRB filed a complaint in May arguing that the firing violated labor law.
But according to the board's counsel, a worker's sniping doesn’t always amount to protected activity.
In the Walmart case, an employee at one of the retail giant's Oklahoma stores alighted on Facebook after an argument with an assistant manager, as reported on Labor Relations Today. "Wuck Falmart!" he wrote. "I swear if this tyranny doesn’t end in this store they are about to get a wake-up call because lots are about to quit!" His Facebook friends included several Walmart co-workers. One responded with "bahaha like! :)" and another with "Lol."
In response to his friends' comments, the employee called the manager a "super mega puta," going on to say that if the situation at the store didn't improve, then Walmart "could kiss my royal white ass!" A co-worker who saw the posting provided the boss with a printout of the exchange.
The manager prepared a written disciplinary report saying that the worker's behavior reflected poorly upon the company and that he would be fired if it continued. The worker appealed to the NLRB, but the board's counsel threw out the case last month, finding that the Facebook tirade was nothing more than "an expression of an individual gripe," rather than concerted activity with other co-workers. "Mere griping," the dismissal noted, "is not protected."
NLRB counsel dismissed the bartender's complaint for similar reasons. In that case, a bartender at JT's Porch Saloon & Eatery in Lombard, Ill., had a back-and-forth on Facebook with his stepsister, complaining that waitresses at the bar didn’t share their tips with bartenders and that he hadn't seen a raise in five years. He threw in the comments on the "redneck" drinkers for good measure. The night manager later informed the bartender that he would probably be terminated for the remarks.
In a cruel bit of irony, the owner of the establishment then fired the bartender via Facebook message.
As in the Walmart worker's case, NLRB counsel found that the bartender's complaint fell short of concerted activity since the posting didn’t involve an earnest discussion about working conditions with any of his co-workers.
According to Cleeland, the NLRB will probably release its report on Facebook cases sometime in the coming weeks. Careful not to call it a guide, Cleeland said it will merely detail particular complaints that have come before the agency and what the outcomes were.
Hsu said employers and workers alike could use a little guidance on social media, however small.
"You can't stick your head in the sand and tell your workers to abstain," she said. "They're not going to. A lot of people growing up, they don’t know anything but communicating through Facebook. You have to teach them how to navigate this new area."