Sunday, May 29, 2011

Firing Peeps for Facebook Comments Illegal!!!

In what I think is spectacular news for workplaces not being able to spy on their workers 24/7 in the new digital age, the National Labor Relations board has declared that a New York non-profit acted illegally when it fired employees over posts made on Facebook.

The Board decided based on the idea that employers cannot restrict the right of workers to discuss their jobs with their co-workers. The idea, I assume, is that in cases with unfair or unsafe work conditions, being able to talk to co-workers can be the only way to bring such issues to light.

The non-profit argued that the statements amounted to harassment of a co-worker, but this article seems to imply that all the comments were about workload, staffing and program management issues, without any indication that any one person was unlawfully targeted.

Interestingly, the harassment claim can be difficult to make. While a workplace generally can fire people for any or no reason (the beautiful At-Will Employment agreement, which substantively only protects employers), in a case like this, where the Board seems to think the firing was illegal, the only way the non-profit could really argue against it would be if the harassment itself were illegal; ie, if it were the harassment of a legally protected class (sex, religion, race, ethnicity, marital status, etc). And it could well be that lines were crossed, since the non-profit in question is Hispanics United of Buffalo, a place where one can assume race is not the banned subject that it would be in most workplaces (granted, I tend to think places where dialog is more open and honest will experience fewer problems, but there's a reason why employers often go for a no-tolerance policy with anything regarding a protected class).

Clearly, there are still gonna be some instances where firing people because of Facebook comments is legal, even if there's no protected class involved. But it's nice to know that in this day and age, with our online identities being so important to our offline, there's still some space to be honest and be yourself, without having a CONSTANT "omg what if my boss saw this?!" filter. That's no way to live.

1 comment:

  1. If I remember the details of this case correctly (and I might not), one of the deciding factors was that the employees were talking on Facebook to other employees -- hence, falling under the NRLB definition of sharing info and concerns with other employees. However, a Facebook post that was sent out to the general public / one's universe of non-coworker friends would *not* be protected. Which I think makes sense -- I mean, if I know that an employee is constantly trash-talking their job/boss/coworkers on Facebook (or wherever), it seems legit for me to be concerned by that.