A Cautionary Tale: Social Media, the NLRB and Free Speech

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Facebook is NOT Free Speech for Employees

There is a short article on the Mashable/ Social Media page written today by Julie O’Dell.  It is entitled “For Employees, Facebook counts as free speech“.  As I write this, the article had been retweeted 1,353 times, and liked on Facebook 1,975 times.  This is a massive amount of views for an article relating to a charge pending before the National Labor Relations Board.

The Mashable perspective on Facebook, the NLRB and Free Speech

Here is the article, if you haven’t seen it.

A federal agency has declared Facebook posts are legally protected speech, even for employees who write negative things about their employers.

In a lawsuit that probably won’t sit well with most employers trying to enforce social media policies, the National Labor Relations Board said that a recent Facebook-related termination was unlawful.

The employee in question, Dawnmarie Souza, used some vulgar language to deride her boss on Facebook when he denied one of her requests. Several of Souza’s co-workers joined in on the thread, also making negative comments about the supervisor. Souza made these comments on her own time and on her own computer.

An NLRB representative told The New York Times that company social media policies that prohibit making negative remarks about one’s boss or company online are actually in violation of labor laws that protect employees’ right to talk about things like wages and working conditions.

Hence, Souza’s supervisors may not have had the right to fire her for what she did.

Of course, not all Facebook activity is likely to be protected speech. Given the nuances of employment law, you may want to call an attorney before you post something derogatory about your boss or workplace — or perhaps just skip the public, online venting altogether.

According to the NLRB’s Facebook page, Facebook comments can lose protected status depending on where the discussion takes place, the subject matter, the nature of the outburst and whether the comments were provoked by an employer’s unfair labor practice.

What do you think: Should companies have the right to make and enforce social media policies about what you can and can’t say about them online? Or should your personal social networks be protected from any work-related consequences?

Michael VanDervort’s perspective on Facebook, the NLRB and Free Speech

Here is the comment I posted in response on Facebook.

Just a word of caution, this case is only a charge, and the decision will be heard in January 2011. It is not yet binding on employers, (although it is a pretty good indication of where things may wind up!) Employees should be very careful NOT to assume that this means anything you say on-line regarding your company or supervisor is ok. That won’t be the case, even if this case is decided as insinuated here.

This thing is far from decided yet, and any decision is sure to be tested.   People offering advice from a social media perspective, as well as employees assuming that this notion of “free speech” is like a constitutional right need to be very careful in their assumptions.   Protected, concerted activity is a complex legal concept, and does not translate into ” I can say whatever I damn well please about my company and my employer”.

It would be very smart to bear this caution in mind.

For another perspective on this topic, see the excellent analysis  why the NLRB just gave you another reason not to have a social media policy by Lance Haun on TLNT.

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