July 2012, Week 2


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Sun, 8 Jul 2012 11:32:39 -0400
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Can You Be Fired for What You Post on Facebook?
It may become easier for overbearing employers to 
control what their workers say online.
By Josh Eidelson
Tuesday, July 3, 2012

On a Saturday morning in October 2010, Mariana Cole-
Rivera, a domestic violence advocate at the group
Hispanics United of Buffalo, began the Facebook thread
that would get her fired. She wrote, "Lydia Cruz, a
coworker feels that we don't help our clients enough at
HUB. I about had it! My fellow coworkers how do you

Within minutes, HUB colleagues began posting supportive
comments. "What the Hell," wrote one, "we don't have a
life as is, What else can we do???"

"I think we should give our paychecks to our clients so
they can `pay' the rent," said another, "also we can
take them to their Dr's appts, and served as translators
(oh! We do that)."

By Tuesday, Cole-Rivera and four of the co-workers who'd
responded to her had lost their jobs. Their boss said
their Facebook thread violated HUB's harassment policy
by disparaging a co-worker. The workers took their case
to the National Labor Relations Board, the federal
agency charged with interpreting and enforcing U.S.
labor law. A judge sided with them, but now the case is
on appeal, and it's poised to help answer a question for
the socially networked era: Which Facebook posts can get
you fired? As more and more of our daily speech migrates
online, business groups are hoping that the NLRB will
make it easier for employers to control that speech. It

You might think the First Amendment decides the legal
issue here, but it doesn't. The Constitution protects
free speech from government interference. In the private
sector, however, courts have made management discretion
the rule. Employees who don't work for the government
and aren't in a union can be fired or punished for
almost anything they say, wherever they say it. Business
groups say companies need the authority to put the best
person in the job and to shuffle as they deem necessary.

Cole-Rivera and the other fired workers have pinned
their hopes on an exception to that rule: the
protection, in the National Labor Relations Act, of
workers' right to engage in "concerted activities" for
"mutual aid or protection."

In earlier pre-Facebook cases, the NLRB considered
several factors in deciding which speech counts as
collective action: whether multiple workers were
involved in the discussion in question, whether it
related to work conditions, whether it was unacceptably
disloyal or malicious, and whether it was intended to
instigate activism. "Sometimes griping is the incipient
stages of `Let's do something about it,' " says former
NLRB Chair Wilma Liebman. Other times, it's "just

Cole-Rivera says that before she posted on Facebook, she
found out her co-worker planned to complain to
management about the work ethic of the employees in her
organization. She argues she engaged in "concerted
activity" by alerting and agitating her co-workers to
the upcoming complaint. The idea is that by sacking
workers for having the conversation, HUB cracked down on
their right to band together to address their workload
or defend themselves against potential discipline.

The NLRB will also soon hear appeals on two other
related cases. In one, a bartender at Triple Play Sports
Bar complained on Facebook that her boss had messed up
her tax withholding ("Such an asshole"), and a cook
pressed "like" on her comment. Both were fired. A judge
found that both the comment and the "like" were
concerted activity and rejected Triple Play's claim that
the thread forfeited legal protections just because a
couple customers weighed in as well.

In the other case, car salesman Robert Becker said he
was fired for posts making fun of the cheap food served
at a launch event where he worked. His boss said he
terminated Becker for other posts, which mocked an
accident at an adjoining dealership in which a 13-year-
old drove a Land Rover into a pond. The judge found that
posting about the food was protected concerted activity.
That's because employees had been discussing them
together at work, and if skimping on snacks hurt sales,
workers' commissions would suffer too. But the judge
upheld the firing based on Becker's boss' testimony that
the Land Rover posts, which weren't protected, were the
ones that cost him his job.

The upshot of these cases, taken together, is that
concerted activity remains a relatively narrow category.
Another example: Last year, when a fire services company
fired an employee for criticizing the company on the
Facebook page of her U.S. senator, the NLRB's Division
of Advice (it's what it sounds like) found "no evidence
of concerted activity" because the employee was acting

Business groups are hoping that the NLRB will go further
in Cole-Rivera's case. U.S. Chamber of Commerce Labor
Policy Director Michael Eastman says the board should
think about whether to be more sensitive to Facebook
posts than it is to what employees say around the water
cooler, given the potential for publicity that could
damage a company's reputation.

But that would undermine the point of the National Labor
Relations Act. Workers' rights to collective action
often conflict with owners' desires to control their
corporate image. But the former is enshrined in law; the
latter isn't. The power of social media to air criticism
shouldn't change that.

The authors of the National Labor Relations Act
recognized that workers have little leverage in a
workplace where managers are free to weed out critics.
If losing your livelihood is the cost of speaking up,
then many workers won't. Concerted activity will take
different forms for different workers-from going on
strike, to filling a class action lawsuit (a right the
NLRB protected in January), to tweeting in concert. All
of those forms of activism deserve protection. Employers
shouldn't have any more power to root out dissident
employees online than they do elsewhere.


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