Facebook, Law, and Employment: Before Dissing Your Boss, Think Like a Lawyer
It's been going on for awhile, but the issue of employers asking potential employees for Facebook and other social networking login information hit critical mass recently, so state House member LaShawn Ford sponsored an easily-passed bill that would make such a request illegal, though asking for user names to check out public information would still be permitted. It's on its way to the Senate. And sounds like the sort of creepy overreach that all sensible people should resent.
But then someone has to go and show the world why an employer might be paranoid in the first place:
So what happens when you hit your Facebook wall and callously have a racist conversation with your equally racist friends?
Answer: if your employers notice, you get fired. 312 Dining Diva has the exchange. The woman in question, responding to the possibility that she might be in violation of her "social media contract," wrote "r u joking? i have a life outside of the club."
Not according to the law, or the NLRA. The Illinois Bar Journal (subscription only) recently ran a fascinating analysis by NLRB field attorney Charles Muhl regarding what Facebook speech is protected by the National Labor Relations Act. To my surprise, the NLRB has protected people who said some heated things—calling one's supervisor a "liar and a b**ch," an "egotistical f**k," and a "f**king son of a b**ch," for instance—but only under specific circumstances.
In short: the NLRA is supposed to give workers protection for complaining about working conditions, acting as a counterweight for workers against employers. Broadly speaking, it's sort of the same protection unions get, except much more informal. The key is this:
Since its inception in 1935, the NLRA has provided employees the right to "engage in other concerted activities for the purpose of... mutual aid or protection," known in legal shorthand as protected, concerted activity....
To be concerted, social media communication generally must involve two or more employees and must not be "griping" (as the NLRB General Counsel recently described it) by one individual solely for his or her benefit.
Typing a thing into Facebook may not seem very "concerted" in the colloquial sense. But you can be concerted in a legal sense:
The clearest example of concerted activity on Facebook would be one employee complaining in a post about working conditions and a second employee who is a Facebook friend posting in response, agreeing and suggesting the employees take their concerns to management.
However, concerted activity can occur even when only one individual is posting if his or her comment is a logical outgrowth of earlier concerted activity, is communicating a call for group action, or is bringing a truly group complaint to the attention of management.... Likewise, if an individual posted a complaint on Facebook, expressed a desire to speak to a supervisor about it, and asked other employees to join the discussion, the post would be concerted even if no other employees responded.
Loosely speaking, "my boss sucks" is not protected. You stand a better chance writing "hey guys, we should talk about how our boss sucks," or "hey boss, let's discuss how you could suck less." These may seem like fine points, but if you trace this back from social media to the water cooler, it's the difference between how labor cohesion works and futile steam-blowing. The NLRB recently released a memo with some vivid examples of what's not permissable. For instance:
On the evening of January 11, 2011, the Charging Party was traveling with the team to pick up a patient and bring her to the hospital. She was sitting in the back of the ambulance with a coworker, a paramedic, who was sucking his teeth. The Charging Party found this practice irritating.
During the ride, the Charging Party used her cell phone to post a message on Facebook indicating that it was driving her nuts that her coworker was sucking his teeth. Two of her Facebook “friends,” who were not employees of the hospital, responded with supporting comments, and the Charging Party responded that she was about to beat him with a ventilator.
Under the principle of "concerted action," you should really take up teeth-sucking with your employer or colleagues before posting about it on Facebook:
We found that the Charging Party’s January 11 post was not protected because it did not concern terms and conditions of employment. She was merely complaining about the sounds her coworker was making, and was not even suggesting that the Employer should do anything about it.
Also of note: complaining about being treated badly is (with caveats) protected; complaining about working with bad people is (with caveats) not:
The Board has held that employee protests over the quality of service provided by an employer are not protected where such concerns have only a tangential relationship to employee terms and conditions of employment.
Here, we found that the Charging Party’s Facebook posts regarding her fellow bartender’s job performance had only a very attenuated connection with terms and conditions of employment. She made the posts because she was upset that he was passing off low-grade drinks as premium liquor and management was condoning the action.... Although she later stated that she was concerned that the
bartender’s conduct would cause customers to stop buying drinks or lower their tips, she did not state this concern in her posts.
The general lesson being: if you're going to go on Facebook and say terrible things about your employer, boss, or co-workers, think first, and most importanly, think like a lawyer.*
*Which IANAL, YMMV.
Related: An engaging article by Alexis Madrigal, "The Philosopher Whose Fingerprints Are All Over the FTC's New Approach to Privacy"; a creepy article by the genius intel reporter James Bamford, "The NSA Is Building the Country's Biggest Spy Center (Watch What You Say)."
Photograph: GOIABA (Goiabarea) (CC by 2.0)