‘Like’ this: Workers’ rights get an update in the age of social media

By DON McINTOSH, Associate Editor

Once upon a time, complaining about work might have gotten you sympathy or advice. In the era of Facebook, it can get you fired. Employers all across the country are disciplining and firing workers for things they say — outside of work and on their own time — on websites like Facebook, Twitter and Youtube.

But as employers increasingly try to police employees’ after-hours speech online, state legislatures and the National Labor Relations Board (NLRB) are stepping up to draw the line about what’s protected. Seven states have passed laws barring companies from asking employees or job applicants for their social network passwords, with Oregon the latest to do so.

And in the last year, the NLRB has targeted companies for “overbroad” social media policies that violate the National Labor Relations Act. That law guarantees workers rights to unionize — or even just take “concerted activity” for the purpose of “mutual aid or protection.”

The NLRB’s foray into social media began with Dawnmarie Souza, an emergency medical technician in New Haven, Connecticut, who was refused union representation during a Nov. 8, 2009, interrogation. Souza went home and posted derogatory comments on her Facebook timeline about her supervisor — referring to him as a “17,” ambulance code for a psychiatric patient, and calling him several other names. Her co-workers responded.

Souza’s employer, American Medical Response (AMR), then fired her for violating its internet posting policy, which forbade “defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

Her union, Teamsters Local 443, filed a charge with the NLRB. The agency investigated, and determined that she was fired illegally, and also, that AMR’s policy was unlawfully over-broad, because employees would reasonably believe that it prohibited rights that are guaranteed under the National Labor Relations Act. As part of a legal settlement, AMR agreed to revise its policy.

It was the NLRB’s first social media case. The agency soon had its hands full with employer policy manuals.

• At Target, an employee handbook barred workers from releasing “confidential information” on social media, or anywhere else. “Watch what you say,” the manual commanded. “Don’t have conversations regarding confidential information in the break room or in any other open area.” “Never share confidential information with another team member unless they have a need to know the information to do their job. If you need to share confidential information with someone outside the company, confirm there is proper authorization.” The manual even required that workers report to management if they learn that a co-worker shared confidential information. All these offenses, Target told its employees, “will result in corrective action, up to and including termination,” and “you also may be subject to legal action, including criminal prosecution.”
• A General Motors policy prohibited workers from posting videos, pictures, or quotes without permission, barred them from posting images of employers logos or trademarks, and required workers to report co-workers for “unusual or inappropriate” social media activity. “Think carefully about ‘friending’ co-workers . . . on external social media sites,” General Motors told its employees. “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site. Non-public information includes: Information that has not already been disclosed by authorized persons in a public forum; and Personal information about another [Employer] employee, such as his or her medical condition, performance, compensation or status in the company. Do not incorporate [Employer] logos, trademarks or other assets in your posts.
• At Walmart, a policy restricted communications with media and government agencies.

In each case, NLRB found that workers would reasonably interpret the policies as prohibiting them from discussing and disclosing their own and co-workers wages and working conditions — and the agency ordered the policies removed. Many of the policies can be made legal, however, if they make clear that they don’t bar workers from discussing wages and working conditions with co-workers.

The NLRB has been trying to get word out to employers about what’s legal. The rules, outlined in a 2012 agency memo, don’t give workers a blanket legal protection to say whatever they want about an employer.

Social media comments are not protected if they are mere griping, as opposed to “group action.” Nor are complaints protected if they aren’t related to working conditions, or if they’re specifically aimed at other than co-workers.

A crime reporter at The Arizona Daily Star was fired, for example, after he tweeted disrespectful comments about homicide. NLRB officials found the dismissal legal, saying the posts were individual, not concerted activity — and weren’t about working conditions.

Similarly, after a fire services company fired an employee for criticizing the company on the Facebook page of her U.S. senator, the NLRB found “no evidence of concerted activity” because the employee was acting alone, and wasn’t using the post to reach out to co-workers.

It might be legal to fire someone for a post that said, “our customer service sucks.” But if the post said, “our customer service sucks because of poor wages and understaffing,” that could be protected, because it could be interpreted as an opening to concerted activity.

The agency looks at it case by case. And cases keep coming.

[UPDATE 6/6/13: Communications Workers of America has launched a campaign, Protect Free Speech Online, with a Facebook page that contains many more examples of workers fired for speaking their mind online.  If you “Like” the page on Facebook, you’ll see its updates in your news feed.]