The nation's labor laws needed a status update. With workers increasingly finding themselves in trouble for comments they have made on social media websites, the National Labor Relations Board (NLRB) has released a set of guidelines on what is -- and is not -- protected.
The rules derive from established precedents for workers' rights as well as the NLRB's experience with prior social media cases. In the broadest terms, employees have long been protected from employer retaliation when engaging in a "concerted activity" to improve their working conditions. In deciding what to protect, the NLRB will continue to look for action deemed to be constructive, as opposed to an individual gripe. (Nasty wall posts are most likely not going to be protected.) And while the NLRB is more likely to protect actions made by a group, with or without the help of a union, there is precedent for the NLRB protecting individuals who seek to improve labor conditions on their own.
The rules come after a spate of labor cases involving social media. Three of the more famous ones, Morton House, the Wal-Mart case and JT Porch, presented complicated scenarios for the NLRB. Is it enough that a worker is sharing wall posts with fellow employees, even if the comments do not amount to a plan for further action? Those cases, in which the identities have been protected, are joined below by examples of more egregious employee infractions on social media. (For instance, it's probably never wise for a teacher to post comments on his students' pages about their looks.)
Below are 10 wide-ranging examples of workers running afoul of their employer because of comments they made on Facebook.
1. The Patriots Cheerleader
When your boss is an outspoken member of the Jewish community, it might not be wise to have photos posted on Facebook of yourself with swastikas painted all over your body. Yet that's exactly what 18-year-old Caitlin Davis did in 2008. Davis was working as a cheerleader for the New England Patriots, who are owned by Robert Kraft, who made his fortune as a packaging magnate with strong ties to the Jewish community. Photos surfaced on Facebook showing the Boston College undergrad passed out in a storm of sharpie scrawl. Among the drawings that appear on Davis and her friends bodies were swastikas, and the phrase, "I'm a Jew." For Kraft and his team, it was too offensive a penalty to let slide. Davis was let go.
2. The Worker With Migraines
The excuse, "sick of computer use," was pretty weak in the first place. But that's the ailment that one Swiss woman used in 2009 with her employer, Nationale Suisse, in saying that she needed a day off from the monitor to help with her migraines. (Her name was not revealed by the company.) She came to an agreement with her boss that she'd spend the day in a dark room. But as she lay in bed, she couldn't help herself from logging on to the social network from her iPhone. When the company noticed, she was fired for the breach of trust.
3. The Medical Technician
When Dawnmarie Souza posted on Facebook in 2010 how she "love[d] how the company allows a 17 to become a supervisor," she was referring to her boss at the Hartford office of American Medical Response (AMR) of Connecticut. AMR uses the number "17" to refer to psychiatric patients. Even though Souza made the comments from the confines of her personal computer during non-working hours, she was soon fired. In February 2011, The NLRB told AMR that its policy prohibiting employees from making negative comments on social networks was "overly broad." Before the case had a chance to test the law, though, Souza agreed to leave AMR in a settlement that also saw the company making plans to change its policies.
4. The Bartender
Among restaurant workers, there's no touchier subject than tipping. So when JT's Porch Saloon, located in Chicago, implemented a policy that wait staff were not required to share tips with bartenders, it was sure to irk a member or two of the bar staff. Taking to the pages of Facebook, one of them wrote in Fall 2010 via wall post that the policy "sucked." (The staffer's name was protected during ensuing legal proceedings.) When the bartender continued to rail against the policy on his step-sister's wall, among those of other friends, he caught the attention of his employers, who sent him a message letting him know that he was no longer an employee of the saloon. After he appealed to the NLRB, the board ruled that the comments did not qualify as a "concerted activity" to be protected against employer retaliation, but rather as an individual grievance. The lack of NLRB protection was trend-setting for social media cases.
5. The Plankers
The very first Google search for the phrase, "why are people," is currently completed with the word, "planking." The trend of "the lying down game," has been among the most curious developments of the last few years, but all can agree that a hospital may not be the best place to give the fad a whirl. Working an overnight shift at the Great Western Hospital in the southwestern English city of Swindon, eight employees took turns planking on hospital floors and stretchers, among other spots. Pictures were inevitably taken, and posted on the Facebook page for planking, which states, "you got a body, you got a plank." The employees were suspended in August 2009 for the incident, but were soon reinstated. That decision was backed by a Facebook group called "Reinstate the Suspended 7."
6. The Homeless Shelter Worker
Don't work with the homeless if you are freaked out by those suffering from mental health problems. An employee of the Connecticut-based Martin House nonprofit residential facility found herself on an overnight shift all alone in 2010. In search of solace, she turned to Facebook, where she commented on her friend's wall that the residents were "spooky." Martin House responded by letting her go, saying that she was exploiting the home's clients for personal amusement. After an appeal was made to the NLRB, the case was soon dismissed as the employee was in communication with her personal friends, and not fellow employees, and so it did not qualify as protected "concerted activity."
7. The Elementary School Teacher
The interests section on Facebook is always an opportunity to show your best creative juices. Takes on "listening to music," and "hanging with friends" are more than welcome among your friends. But when you are a teacher, stating an interest in "teaching chitlins in the ghetto of Charlotte," you may be taking the humor a bit too far. Of course, chitlins are a soul food dish, and so the phrase has a direct racial connotation. Citing the inappropriate implication of such remarks, the elementary school teacher was placed on leave in 2008. (The North Carolina teacher's name was protected during legal proceedings.) And any doubt over the sensitivity of the North Carolina teacher's interests section was dispelled by her "About Me" section. In it she puts it plainly, "I teach at the most ghetto school in Charlotte."
8. The Wal-Mart Employee
As far as the NLRB was concerned, it wasn't enough that the Facebook user was complaining about his company to fellow employees. In a landmark 2010 case, one Wal-Mart employee was not given protection because his comments didn't amount to the crucial NLRB doctrine of a "logical outgrowth of prior group activity." Or, in plain English, he wasn't involved in organizing group action against an employer. Not that the Wal-Mart employee wasn't smoldering with discontent. "I swear if this tyranny doesn't end in this store they are about to get a wakeup call because lots are about to quit," he posted. Upon catching wind of the post, Wal-Mart responded with a one-day unpaid suspension and forced counseling. The relative slap-on-the-wrist still prompted the Wal-Mart employee to appeal to the NLRB, which rejected his claim on the basis that his comment was basically an individual gripe.
9. The Substitute Teacher
If you are a teacher, probably nothing good can come out of becoming Facebook friends with your students. Yet few would question that telling a student, her "boyfriend [did not] deserve a beautiful girl like you," has no place in either the classroom or the comments section. Manhattan substitute teacher Stephen D'Andrilli crossed that line last year with several of his female students at the Essex Street Academy, regularly telling them that they were beautiful via Facebook posts. He was soon barred from subbing in New York City.
10. The Angry Employee
As Facebook is such a new force in our lives, the rules for proper decorum on the social website are still taking shape, as this article suggests. But then there's the instance of a British woman known as Lindsay sounding off on her boss -- who also happened to be one of her Facebook friends: "OMG I HATE MY JOB!! My boss is a total pervvy (sic) w**ker, always making me do s**t stuff just to p**s me off!! W**ker!" Since Lindsay was still in the trial phase of her job, the decision on her future was an easy one. Five hours after her post, her page was updated with a post from the boss, who noted: "I guess you forgot about adding me on here?... "Don't bother coming in tomorrow. I'll pop your P45 (pink slip) in the post, and you can come in whenever you like to pick up any stuff you've left here. And, yes, I'm serious." The screen grab became a viral sensation back in 2009.
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