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Even if It Enrages Your Boss, Social Net Speech Is Protected
By STEVEN GREENHOUSE
Published: January 21, 2013
As Facebook and Twitter become as central to workplace conversation as the company cafeteria, federal regulators are ordering employers to scale back policies that limit what workers can say online.
Brendan Bannon for The New York Times
Rafael Gomez, a lawyer for Hispanics United of Buffalo, said the group would appeal an N.L.R.B. decision in favor of employees.
Brendan Bannon for The New York Times
Mariana Cole-Rivera, formerly of Hispanics United of Buffalo, was fired along with four co-workers after Facebook posts.
Employers often seek to discourage comments that paint them in a negative light. Don’t discuss company matters publicly, a typical social media policy will say, and don’t disparage managers, co-workers or the company itself. Violations can be a firing offense.
But in a series of recent rulings and advisories, labor regulators have declared many such blanket restrictions illegal. The National Labor Relations Board says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.
In addition to ordering the reinstatement of various workers fired for their posts on social networks, the agency has pushed companies nationwide, including giants like General Motors, Target and Costco, to rewrite their social media rules.
“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters. “All we’re doing is applying traditional rules to a new technology.”
The decisions come amid a broader debate over what constitutes appropriate discussion on Facebook and other social networks. Schools and universities are wrestling with online bullying and student disclosures about drug use. Governments worry about what police officers and teachers say and do online on their own time. Even corporate chieftains are finding that their online comments can run afoul of securities regulators.
The labor board’s rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies — like bans on “disrespectful” comments or posts that criticize the employer — if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.
But the agency has also found that it is permissible for employers to act against a lone worker ranting on the Internet.
Several cases illustrate the differing standards.
At Hispanics United of Buffalo, a nonprofit social services provider in upstate New York, a caseworker threatened to complain to the boss that others were not working hard enough. Another worker, Mariana Cole-Rivera, posted a Facebook message asking, “My fellow co-workers, how do you feel?”
Several of her colleagues posted angry, sometimes expletive-laden, responses. “Try doing my job. I have five programs,” wrote one. “What the hell, we don’t have a life as is,” wrote another.
Hispanics United fired Ms. Cole-Rivera and four other caseworkers who responded to her, saying they had violated the company’s harassment policies by going after the caseworker who complained.
In a 3-to-1 decision last month, the labor board concluded that the caseworkers had been unlawfully terminated. It found that the posts in 2010 were the type of “concerted activity” for “mutual aid” that is expressly protected by the National Labor Relations Act.
“The board’s decision felt like vindication,” said Ms. Cole-Rivera, who has since found another social work job.
The N.L.R.B. had far less sympathy for a police reporter at The Arizona Daily Star.
Frustrated by a lack of news, the reporter posted several Twitter comments. One said, “What?!?!?! No overnight homicide. ... You’re slacking, Tucson.” Another began, “You stay homicidal, Tucson.”
The newspaper fired the reporter, and board officials found the dismissal legal, saying the posts were offensive, not concerted activity and not about working conditions.
The agency also affirmed the firing of a bartender in Illinois. Unhappy about not receiving a raise for five years, the bartender posted on Facebook, calling his customers “rednecks” and saying he hoped they choked on glass as they drove home drunk.
Labor board officials found that his comments were personal venting, not the “concerted activity” aimed at improving wages and working conditions that is protected by federal law.
N.L.R.B. officials did not name the reporter or the bartender.
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