Mocking Your Boss on Facebook May Become 'Protected Activity'

The National Labor Relations Board takes an employer to court

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In the near future, whining about your boss on Facebook may be a protected activity. At least if the National Labor Relations Board gets their way. Setting the stage for what's been deemed a "ground-breaking" case on the implications of social media use, the NLRB has filed a complaint against an ambulance service alleging that the company illegally fired an employee based on comments she made on the social-networking site.

The employee, Dawnmarie Souza, apparently "mocked her supervisor on Facebook" using several vulgarities after a workplace disagreement. After she made the comments, which some co-workers supported, she was quickly suspended and then fired. Lafe Solomon, the Board's acting general consul seemed optimistic about the case's outcome in an interview with The New York Times: "This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that." A judge is scheduled to hear the case on January 25th, the Times reports.

  • The Company's Side of the Story  Melanie Trottman at The Wall Street Journal reports on the statement that the American Medical Response of Connecticut made to counter its former employee's claims. They "denied the allegations and said the employee in question was discharged 'based on multiple, serious complaints about her behavior.' The employee was also being held accountable for negative personal attacks that she posted on Facebook about a coworker, the company said, adding that it believes those statements were not concerted activity protected under federal law."
  • What This Could Mean for Facebook  Jackie Cohen at the resource blog All Facebook, outlines how a ruling could affect the site. "Actually, only part of the complaint directly concerns communications on Facebook," the blogger notes. "But still, the development is really cool for free speech and employee rights. The coolest part is that the independent federal agency is suing American Medical Response of Connecticut, Inc. for having an overly broad blogging and online posting policy, which appears to be the same type of rule lots of employers have been embracing lately. If the NLRB wins this lawsuit, this could become a first step toward Facebook actually becoming a place where unfair employment practices could get called out."
  • What This Could Mean for Companies  Mario Sundar, chief blogger at LinkedIn, parses the potential implications for businesses. "As a company, there’s not much you can do over an employees’ usage of social media. That’s a given. But, trying to get them to understand what responsible usage of social media is, can be done," he explains before offering this suggestion. "Having a social media policy is one way of doing it. Getting your employees to help craft it collaboratively is even better. At LinkedIn, over a year ago, we hosted two brainstorm sessions where we invited all interested employees to learn, share and help craft our guidelines. This led to our first set of social media guidelines which we socialized internally."
  • Lots Have Lost Their Jobs, Now the Board Steps In   AOL Tech's Amar Toor relays the opinion of Michael Babson, a former NLRB board member: "If a user complained about his boss without engaging his co-workers, for example, that may not constitute the kind of 'concerted protected activity' that federal law defends. If an online dialogue involves several employees, on the other hand, the judge may rule otherwise. Regardless of which way the judge swings, though, this is the first time that the NLRB has publicly defended an employee involved in a workplace Facebook snafu -- and that alone is pretty significant."
  • How About: If You Want to Whine About Your Boss, Just Make a 'List'  Noting that the National Labor Board had Facebook gripers' backs "for now," The Washington Post's Melissa Bell details how legal troubles can be avoided by tightening Facebook friendship circles. "If you really cannot refrain from whining about your boss on Facebook, there are these fantastic things called 'Lists.' They allow you to group your friends according to what you do and do not want them to know. Simply go to Account --> Edit Friends --> Create a List. Label it 'Work.' Select all the friends that have anything at all to do with your job, or your boss. Now, the next time you go to post a status update that reads, 'My boss is a huge jerkface,' click the icon that looks like a lock. It will offer you the option 'Custom.' Choose edit and then in the 'Hide this from' bar, enter 'WORK.' Save setting; whine at will."
This article is from the archive of our partner The Wire.