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Thu, Feb 17, 2011

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Fired for Facebook: Should Bashing The Boss Be Legally Protected?

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Employees have been criticizing their bosses since the beginning of time.

Until the birth of social media, these conversations generally played out in lunchrooms or restrooms, around the water cooler, over a few cocktails at the local pub after working hours, and in the smoker’s circle outside the office building.

Regardless if the criticisms were true or not, the context remained private for the most part, usually involving a few other employees who also had similar distain and negative feedback regarding the boss.  Now, via social channels like Facebook and Twitter, private thoughts shared among a few are becoming very public statements broadcast to the world in real-time.

Should employees be allowed to bash the boss on Facebook?  More importantly, should they be legally protected when they publicly disparage their boss in social media?

These questions and concerns hit mainstream media last week following a recent case in Connecticut where the National Labor Relations Board ruled that companies can’t fire employees for complaining about their boss on Facebook.

To set the historical context around the recent ruling, in 2009, American Medical Response (AMR), an ambulance services company, fired one of their emergency medical technicians for posting a criticism of her supervisor on Facebook. Several of the woman’s coworkers agreed with her Facebook post, in which she “referred to their supervisor using AMR’s code for a psychiatric patient.”

Fast forward to October 2010, when the National Labor Relations Board (NLRB) in turn filed a complaint against the company on behalf of Dawnmarie Souza, the fired EMT. The NLRB argued that “the National Labor Relations Act made Souza’s comments protected speech; the act gave her the right to discuss terms of employment with AMR with her coworkers and other people.”

The NLRB also felt AMR erred in not providing Souza with union representation when supervisors met with her to discuss her Facebook post.

What happens when the workplace and social media collide?  What precedent does this now set in labor law and what repercussions will this ruling have on future employer/employee relations? And what does this mean for existing employee policies and their use of social media?

HR blogger Lance Haun recently authored an article on The NLRB-Facebook Firing Case, looking at the Four Things Employers Need To Know. Lance brings  up some interesting points, in particular, does this ruling only protect union employees and is this a victory for free speech, or something else all together.

We’d like to open up the conversation further and suggest additional questions for employers following last week’s NLRB ruling.

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Social Networking: Three Questions for Employers To Consider

1. Isn’t this behavior just another form of workplace bullying or harassment?

While companies are going to great lengths to protect employees (including the boss) in the workplace, what is the employer’s role in protecting the employee being bashed publicly? If boss bashing is a form of workplace bullying, should such behavior be tolerated, let alone protected by law?

2. Are current social media policies/guidelines now at risk?

Even if employers have clearly defined social media guidelines established within their organizations, this ruling could challenge social media policies currently in place. If employees can now cite AMR vs. Souza in their own defense, existing social media guidelines may now need to be revisited by organizations.

3. What damage control and legal risks potentially lie ahead?

When a company’s dirty laundry is aired in public for the world to see, what negative impact does it have on the brand reputation of the organization, and what processes can they put in place to get back on track?  If the information posted in a public online setting is libelous and slanderous, does boss bashing now put the company at risk for a potential lawsuit brought on by one of their own employees?

We suspect this is just the beginning of the discussion, and while we continue to watch how things will play out, we do predict two things in the aftermath of this current ruling:

  1. Employers will be re-thinking their in-house social media policies immediately.
  2. Anyone thinking about getting into social media law as a career choice will likely have excellent job security in the years to come.

For more information and resources on social media issues in the workplace, please visit the Social Media Business Council web site.

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  • http://thehumanracehorses.com Michael VanDervort

    I wrote this on the AMR case recently:

    This NLRB decision actually had very little to do with the concept of free speech. It dealt with a very esoteric legal standard called protected concerted activity (PCA), which is governed under the National Labor Relations Act and applies to all employees, unionized or not that are protected by the NLRA. PCA occurs when a group of employees engage in the act of discussing terms and conditions of employment with the intention of trying to improve or protect them.

    and this:

    An article on Forbes entitled Case Settled: Union Employees, You Can Badmouth Your Boss on Facebook actually references the definition of PCA in their story, touching on it while quoting an NLRB press release. . Here is that quote:

    “The company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions,”

    Take a note, that doesn’t mention “free speech” anywhere, kids. It doesn’t say it is okay to call your boss an asshole, or mock his or her toupee. It is wages, hours and working conditions, and more importantly, it entails the people discussing do something to change or protect those things. It isn’t just complaining, although complaining probably won’t get you fired. Other stuff still can, so be careful about what you say!

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  • http://www.monsterthinking.com Kathy O’Reilly

    Thanks for taking time to comment and for this valuable feedback and good follow-up info. Much appreciated!
    – Kathy

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