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Can you be fired for what you say on Facebook? Sometimes. But when? No one is really sure yet.

The emergence of social media platforms that potentially give people the chance to speak to audiences beyond their close friends and co-workers, and where lines between more or less idle chatter and intentional organizing can be blurred, complicates the question of what's protected, and makes companies care a lot more since criticisms of them can be so much more public than water cooler talk. The National Labor Relations Board is taking up a few social media-related cases, and Josh Eidelson looks at the issues involved.

Workers are generally protected when engaging in "concerted activity":

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 griping.”
Cases being considered include caseworkers angrily discussing a co-worker's plan to tell management they weren't working hard enough and a bartender complaining that her boss had gotten her tax withholding wrong. Everyday complaints, in other words, with the key question being whether workers were actively trying to improve conditions together, or just complaining. Eidelson writes that:
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.

A fair day's wage

  • Workers at five HealthBridge nursing homes in Connecticut are on strike after management imposed a "last, best, and final" contract offer on them in late June. Workers at one of the nursing homes had been locked out from December to April as a management pressure tactic trying to get workers to accept cuts to health care, sick days, holidays, overtime pay, and more. The contract HealthBridge is imposing on workers includes a pay raise, but cuts benefits and hours so that workers are in effect having their pay cut substantially:
    Breakdown of provisions in contract imposed on HealthBridge nursing home workers
    (SEIU 1199)
    The union is arguing that HealthBridge's imposition of its contract is illegal, and workers are picketing the nursing homes.
  • Central Ohio bus drivers and mechanics have agreed to a contract, ending a three-day strike.
  • Workers at Bain-owned Sensata Technologies in Illinois are fighting the company's plan to outsource 150 jobs to China.
  • The NFL Players Association is asking the league to investigate if the New Orleans Saints are punishing quarterback Drew Brees for his outspoken union activism by stalling contract negotiations.
  • Walmart: 50 years of gutting America's middle class. (Via)

State and local legislation

  • Daily Kos Elections has a great rundown on where two very important Michigan ballot measures stand. The "Protect Our Jobs" amendment, which would "enshrine collective bargaining in the state constitution," got cleared by the Secretary of State, though challenges are expected, and the referendum to repeal Public Act 4, the emergency manager law, continues through the courts. Public Act 4 was used just this week to impose a contract on Detroit public school teachers.
  • Florida parents and unions joined to defeat the anti-union "parent trigger" in education there, but similar measures are being heavily pushed around the country, and not just by Republicans.
  • Two-thirds of Wisconsin school districts will receive less state aid in 2012-2013 than last year. Thanks, Scott Walker! (Via)

Miscellaneous

Originally posted to Daily Kos Labor on Sat Jul 07, 2012 at 05:55 PM PDT.

Also republished by ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement and Daily Kos.

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Comment Preferences

  •  I don't see why you'd get fired even if it is just (10+ / 0-)

    griping.  Businesses have such fragile egos.  The fact is that I have dealt with very few businesses in my life who did not leave me with a sense that they were trying to exploit me.  I have also spent enough time in the labor market and worked for enough businesses to know that most management holds its labor pool in very low regard.  

    Maybe if they wanted to protect their reputation and not just their pocketbooks they'd start treating their employees and customers with more respect?

    Democracy is often an indictment of the voting populace.

    by electricgrendel on Sat Jul 07, 2012 at 06:28:00 PM PDT

    •  At a judicial conference last winter (2+ / 0-)
      Recommended by:
      Dirtandiron, ozsea1

      That I attended, one speaker warned the audience not to disclose client conferences via social media.  Appellate Judges were describing what they thought of briefs and oral arguments and the attorneys making the arguments, in violation of judicial ethics.  The veneer of anonomynity was easily pierceable.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Sat Jul 07, 2012 at 06:40:01 PM PDT

      [ Parent ]

    •  The first amendment apparently only... (5+ / 0-)

      applies to corporations, not employees.

      "The right to be heard does not automatically include the right to be taken seriously." -- Hubert H. Humphrey

      by Candide08 on Sat Jul 07, 2012 at 06:48:25 PM PDT

      [ Parent ]

      •  The First Amendment... (3+ / 0-)

        ...is a restriction on Congress ("Congress shall make no law [...] abridging the freedom of speech"). It was subsequently expanded by the SCOTUS to limit the ability of state and local governments to abridge freedom of speech (via the "Incorporation Doctrine" ).

        The First Amendment has absolutely nothing to do with private parties restricting or retaliating against the speech of other private parties.

        For example, the NAACP is free to fire an executive if s/he begins to publicly espouse, on their own time, their personal support for the KKK without the First Amendment interfering.

  •  As a teacher....social media is a big no no (6+ / 0-)

    for the most part unless very guarded....both your own privacy and for your career.

  •  I am getting closer to closing my FB account (1+ / 0-)
    Recommended by:
    Dirtandiron

    for those kind of reasons - it just gives *ssholes more information to play with

    Präsidentenelf-maßschach"Nous sommes un groupuscule" (-9.50; -7.03) "Ensanguining the skies...Falls the remorseful day".政治委员, 政委‽ Warning - some snark above ‽

    by annieli on Sat Jul 07, 2012 at 06:36:08 PM PDT

  •  How? Easy . . . (7+ / 0-)

    in almost every part of the US employment is "at-will" which means either the employer or the employee can terminate employment at any time.  An employer may terminate for any reason whatsoever EXCEPT for an impermissible reason such as age, race, gender, etc.  Can a boss terminate you because he doesn't like your tie?  Yes. Can he terminate you for what you said on Facebook?  Yes.

    I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

    by bobdevo on Sat Jul 07, 2012 at 06:40:45 PM PDT

    •  I have always fired my bosses. I found it works (2+ / 0-)
      Recommended by:
      ozsea1, bobdevo

      out better that way. Most of the time, they got notice, but there was once they didn't.

      202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

      by cany on Sat Jul 07, 2012 at 08:49:36 PM PDT

      [ Parent ]

  •  true; I avoid posting anything related to work.... (4+ / 0-)
    Recommended by:
    demimondian, Dirtandiron, ozsea1, TexasTom

    .....on FB.  Legal issues aside, people have to remember that just because you can post anything on the internet (FB, whatever) doesn't mean that you should.  If you want to gripe privately, the key word there is "privately".

    "It's only in books that the officers of the detective force are superior to the weakness of making a mistake." (Wilkie Collins, The Moonstone)

    by chingchongchinaman on Sat Jul 07, 2012 at 06:41:55 PM PDT

  •  having been a (2+ / 0-)
    Recommended by:
    Dirtandiron, ozsea1

    manager, (I've never though of myself as a "boss"), I never understand why it's important to try to gain control over folks who report to me since it's always about the collective enterprise rather than any one individual, but since more of my life has been as an "employee" I do understand why people with poor judgement and social development often turn into lizard people, particularly if one is an Other or "different"

    Präsidentenelf-maßschach"Nous sommes un groupuscule" (-9.50; -7.03) "Ensanguining the skies...Falls the remorseful day".政治委员, 政委‽ Warning - some snark above ‽

    by annieli on Sat Jul 07, 2012 at 06:53:23 PM PDT

  •  My 27 year-old nephew is living with me and (3+ / 0-)
    Recommended by:
    Dirtandiron, ozsea1, Cuester

    looking for a job. He posts on facebook and asks me to critique what he writes. Wow, he does a wonderful progressive job, I agree with everything he says and I correct his spelling and such.

    But I tell him don't do this. Many companies will not hire you if you are such a radical liberal progressive and they check facebook.

    I am interfering with his right to free speech.

    Damn, that just isn't right.

  •  Got her withholding wrong (2+ / 0-)
    Recommended by:
    Dirtandiron, ChemBob

    or is stealing from her?

    Those who forget the pasta are doomed to reheat it.

    by CarolinNJ on Sat Jul 07, 2012 at 07:57:55 PM PDT

  •  It depends on the speech (1+ / 0-)
    Recommended by:
    johnny wurster

    This may be an unpopular notion, but yes, I think to an extent an employer has the right to let you go if you are badmouthing the company.

    1.  Complain about how a company treats it's workers: No
    2.  Complain about your salary: No
    3.  Complain about your manager: No

    a.  Complain about your product: Yes
    b.  Complain about your services: Yes
    c.  Complain about your pricing/marketing: Yes

    If I'm a manager of a software team and one of my developers goes off on a blog or Facebook about how much our software sucks, I'd ask him to discuss his concerns.

    If it's a habitual thing, he shouldn't be working there, and I should be able to fire him.

    GOD! Save me from your followers.

    by adversus on Sat Jul 07, 2012 at 08:06:33 PM PDT

    •  Here's some guidance on that. (1+ / 0-)
      Recommended by:
      ozsea1

      I wouldn't treat it that black and whitely.  There is more to it than that.  It is bad form for an employee to do speak ill of a company, but it is not necessarily a firing offence.

      At the end of the day, a company needs to have a policy in place before they terminate employees over facebook posts or they risk a lot of problems.

      I'm pretty happy with 121st place. Not bad for 13 points.

      by Prof Dave on Sat Jul 07, 2012 at 08:27:33 PM PDT

      [ Parent ]

      •  There's a difference between firing as punishment (1+ / 0-)
        Recommended by:
        ozsea1

        ... and firing because that person isn't a good fit.

        Imagine if you are in a client-facing sales role.  How would you justify keeping a Salesperson that runs a blog or posts on Facebook about how much better your competitors product is?

        If as an employer, I see my employees aren't happy, I'll discuss it with them.  I'd never fire somebody for venting on Facebook or a blog.

        My point was to say there's a difference between venting and posting something that is anti-thesis to your companies' stated goals.

        GOD! Save me from your followers.

        by adversus on Sat Jul 07, 2012 at 09:21:06 PM PDT

        [ Parent ]

    •  And that's why I think this decision was stupid. (0+ / 0-)

      Mere collective discussion can't be protected; there has to be some sort of nexus to workplace conditions, and it must be done in a respectful way if it's also in a public forum.  ie, the content of the collective discussion matters for whether the speech should be protected.

  •  What you don't say on Facebook might get you hired (1+ / 0-)
    Recommended by:
    ozsea1

    So, there is now research that has used FB to determine your personality.  While this may or may not be something that is "scary", it is something that people should be aware of.  It is becoming increasingly prevalent that states have reacted to make the use of such information is illegal - and increasingly being used in hiring decisions.

    Where this ends, I don't know, but it is worth knowing about, and guarding against by taking measures to prevent employers from knowing or seeing your FB info.

    I'm pretty happy with 121st place. Not bad for 13 points.

    by Prof Dave on Sat Jul 07, 2012 at 08:19:15 PM PDT

  •  Easy way to avoid this, keep your personal data (1+ / 0-)
    Recommended by:
    johnny wurster

    and don't let FB sell it and enjoy the freedoms a phone allows you. FB is just awful, I say that as someone who tried it for months because I had some work contacts and we were going through mass layoffs and figured it would be a good thing to keep in touch just in case and just didn't see what the big deal was. Besides dodging exes, blocking people who posted absurd things that would reflect poorly on me, watching all my personal info being shared with the world through every aspect of the program and asking friends to not post pictures of me out at the bars, it was more annoying than I could ever have thought.

    •  Not like he needs the props (0+ / 0-)

      but our own G2Geek has commented extensively on this subject.

      Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

      by ozsea1 on Sat Jul 07, 2012 at 10:38:34 PM PDT

      [ Parent ]

  •  eh hem, just to cover a simple point... (0+ / 0-)

    one has to be employed to get fired.

    202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

    by cany on Sat Jul 07, 2012 at 08:44:33 PM PDT

  •  We cannot use Facebook in Healthcare where I work. (0+ / 0-)

    There are many new Privacy rules due to HIPPA
    laws designed to protect patient information.
    Unfortunately there have been some people that brought their cellphone to work/snapped/posted and some poor patient's information was unwittingly disclosed.
    HR recruiters said that people looking for jobs nowadays
    were discouraged in my field to use Facebook.
    Now that it is a mismanaged IPO,it is even more risky.
    Just my paranoid opinion in this data-driven World.

    •  With all due respect (1+ / 0-)
      Recommended by:
      johnny wurster

      that would for me, having been in the business for twenty-plus years, come under the "No shit, Sherlock!" catagory.

      HIPPA is huge in our profession. Violate at your peril. As it should be, imho.

      Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

      by ozsea1 on Sat Jul 07, 2012 at 10:42:05 PM PDT

      [ Parent ]

  •  Your "rights" in the workplace are worse than . . (0+ / 0-)

    you can imagine.

    Check out this recent post from Crooked Timber by Chris Bertram, Corey Robin, and Alex Gourevitch.  http://crookedtimber.org/...

    This article is part of a debate between academics on the Left with so called "freedom loving" libertarians.  The Crooked Timber post is a excellent primer to learn about the barbaric feudal nature of modern American labor law.

    Also check out Professor Corey Robin's blog.  His excellent blog has a section devoted to labor issues.  Check out http://coreyrobin.com/...

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