Employees Have Free Speech on Facebook

Employers: it's not legal for you to restrict what employees say about you on Facebook, or other Internet venues. So says the U.S. National Labor Relations Board (NLRB), after settling a lawsuit with American Medical Response of Connecticut Inc. Let's examine the implications, in The Long View ...

The U.S. government -- in the guise of the NLRB -- on Monday settled with a Connecticut-based ambulance company, which had fired an employee for publicly criticizing her boss on Facebook. The NLRB's position is that the employee's speech was protected under federal labor laws. On the other hand, the employer had set out policies that restricted employees.

The case highlights the reality that the Internet is just another medium. Speech on the Internet should be protected in the same ways as it would be if written in a letter to a newspaper, or said in a public place.

As the AP's Dave Collins put it:

American Medical Response of Connecticut Inc. agreed to change its blogging and Internet policy that barred workers from disparaging the company or its supervisors. The company also will revise another policy that prohibited employees from depicting the company in any way over the Internet without permission.
...
Terms of a private settlement agreement between the employee, Dawnmarie Souza, and the company were not disclosed. ... Souza posted the Facebook comments in 2009 from her home computer. ... The expletive-filled posting referred to her supervisor using ... code for a psychiatric patient.

The NLRB is "an independent federal agency vested with the power ... to prevent and remedy unfair labor practices committed by private sector employers." Its key staff are appointed by the President. So, while its judgment doesn't set legal precedent, U.S. employers are strongly advised to take notice when it rules on matters such as this.

I am not a lawyer (neither do I play one on TV); you must be guided by your own Counsel. However, it seems to me this judgment makes it plain that Facebook, Twitter, blogs, forum posts, etc. are just another form of speech, with the same protections under Federal law.

And quite right too, in my humble opinion. It's simply not acceptable for employers to write policies that restrict the speech of employees, simply because the speech is on the Internet.

Companies should be guided by their legal counsel as to the restrictions that are lawful -- for example libel, obscenity, imminent threats -- but should bear in mind that the Internet as a medium isn't relevant.

An important angle to the agreement reached by the NLRB and the employer was related to the overly-broad wording of the policies. Certainly, telling employees that they may not "depict the company in any way over the Internet without permission" is laughably broad, in my opinion.

In other words, any restriction on Internet speech that you write into employee policies should not be broader than they would be for speech in real life. If a policy would be illegally restrictive when applied to a megaphone in a town square, it's illegal for Internet speech.

The grievance was apparently compounded by the company's refusal to recognize union representation in a disciplinary hearing, but that's not relevant to this discussion. This isn't about the pros and cons of organized labor -- this is about restricting a person's free speech.

However, this case does also have an important moral for employees. Once again, it illustrate how dangerous it is for Facebook users to imagine they have any shred of private control over the content in their Facebook account.

It does seem utterly reckless of Dawnmarie Souza to liken her boss to a psychiatric patient. Even though it was couched in terms that a layman wouldn't understand, it was a dangerous risk to take, assuming that it's wouldn't get back to her boss.

Assuming that the company and Ms. Souza aren't reconciled after this, who would employ her now? I mean, look at this Google search.

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