Facebook Firings: Top 10 Cases And The NLRB's New Guidelines

NLRB Facebook commentsThe 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.

Next: Facebook Suit Highlights Employers' Misunderstanding Of Labor Laws

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it's nice to have an understanding boss like I do. On my way to my annual review my boss called for me several times over the walkie but didn't hold the button down long enough to even hear that he wanted me. after the 5th attempt i was able to understand what he wanted and told him ill be right there. well the button on my headset stuck ON and everyone with a radio heard me rip on him real harshly the whole way there, around about a 30 second walk. lets just say that was not a comfortable time and i don't use headsets anymore. Looking back it's a laugh riot but ill bet my face was hot rod red. I think this world is void of a lot of compassion. If your reading this bossman, Thanks.

companies do try to get rid of the experienced people they rightfully pay more. pay someone half as much to do less then half as well and not have all the answers to anyone's questions.

September 05 2011 at 1:52 AM Report abuse rate up rate down Reply

Hey,Hey! If the boss person doesn't want you to work for them any more since he-she is the one that pays you, your salary, they can fire you for any little reason or no reason and if you bad mouth them that's a reason, SOOOOooo Be nice and be careful what you say some body is always reading or listening.

September 04 2011 at 7:16 PM Report abuse -1 rate up rate down Reply
2 replies to Sue's comment

Yeah, even the bathrooms probably have hidden video cameras and sound. It isn't unheard of. Corporations have less loyalty to their employees than ever before in history. They keep looking for ways to get rid of people, send jobs overseas, or make each person do the work of 3.

September 04 2011 at 9:50 PM Report abuse +2 rate up rate down Reply

Actually, Sue, you are wrong. While in some states a "bossman" can fire you because he doesn't like the way that you part your hair, amongst larger national/international corporations, they can't fire someone without just cause. For instance--you probably like the stories where a manager would go down in the parking lot, and look for all of the Obama stickers and fire the owners of those cars. In truth, if anyone were STUPID enough to do that, 1) the company would lose all sorts of lawsuits and 2) that manager would be fired as a liability to the company. (The same would hold true for a manager going down and firing the owners of all McCain stickered cars, but Democrats are not STUPID enough to believe that they have a legal right to dictate their employees' politics.) SOOOOooo, Sue, for your sake, I hope that you aren't a "boss person" for a larger than 25 employees company, because with your belief in your ability to overstep your authority, you will quickly be out of work.

September 05 2011 at 4:48 AM Report abuse rate up rate down Reply

That is why you should have a seperate page for workers and for your private life. You need to set you privacy settings to friends only and make it so no one other then you friends can see what is on your facebook page. Make your page so you cannot be searched for, and only add people that do not work for your company and have no contact with anyone from you workplace.

Have a seperate page for friends from work if you feel you need to this way you can say what is safe on work page and have your freedom on the private friends page.

September 04 2011 at 6:47 PM Report abuse rate up rate down Reply

Screw Political Correctness!!!! As the old saying goes, F*** them if they can't take a joke and joke them if they can't take a F***. People need to get over them selves. I don't care who you are your not as great as you think you are. Welcome to the real world.

September 04 2011 at 6:38 PM Report abuse -1 rate up rate down Reply
2 replies to windrider752's comment

Correct your grammar, Dear. You're not as great as You think You are...perhaps. Get over themselves.

September 05 2011 at 12:25 AM Report abuse rate up rate down Reply

True; the boss is always watching. Be safe.

September 05 2011 at 12:27 AM Report abuse rate up rate down Reply

Getting fired for stating your opinion is actually a violation of your cival rights and discrimination.

We're allowed to vote for presidential and other political candidates based on our faiths, political status, views of governement control & obligations, and employer and job relations. These are often the foundations of a politicians campaign. So we're legally allowed by nature of having the right to vote to have an opinion.

Fireing because we're commenting on things by which we base our votes on punishing us for having a different view than the employer. (and everything we blog about we'd likely vote for a politician that agrees with us)

We have a right to vote our based on our opinions and our opinions are part of our persuit for life, liberty and happiness, so fireing based on our american rights is unconstitutional.

September 04 2011 at 6:38 PM Report abuse -1 rate up rate down Reply

Let's do the math

If a company has an employee that they need and is earning a low income, the company will not care one bit.

These fireings are often the result of the company searching for additional criteria to fire someone with "punishable grounds" of which they didn't have already. For instance you can't fire a woman for taking maternity leave but you can plan your layoffs around the expected date of baby delivery.

Companies often work on an "at will" basis that allows them to fire you for no reason at all. The use of additional social media, although asissts them in claiming proof is actually an intentional defmation of your character if you are fired.

September 04 2011 at 6:37 PM Report abuse rate up rate down Reply
Hi Catmom!

The boss is always watching..

September 04 2011 at 5:44 PM Report abuse rate up rate down Reply

You'd think celebrities the only ones who have Papparrazi. You guys better guess again. Any action you do in even the rural of places will go viral nation then worldwide. Everything you do is monitored in some way. Just be careful of your actions.

September 04 2011 at 3:33 PM Report abuse +2 rate up rate down Reply

I like how no matter what you do you offend somebody. If you don't live like a robot you wont survive a day out here. Political Correctness plus Big Brother plus billions of surveilance equal what you guys are today. XD. Ppl remind me of herds of Cattle.

September 04 2011 at 3:22 PM Report abuse rate up rate down Reply

The United States Bill of Rights should OVERRULE any rules invented by petty tyrants. If you want to remain anonymous and speak your mind on You Tube or any other social media outlet, use a nome de plume and use a yahoo, hotmail, or gmail screen name that you invented for the purpose. Or just HIDE your email from view. Don't post photos of yourself or your family or real-life friends. You can have a FB page with your real name for the innocous stuff. Then rip people new ***holes with impunity!

September 04 2011 at 11:52 AM Report abuse +1 rate up rate down Reply

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