A federal ruling that ordered the reinstatement of five employees fired from a nonprofit agency could be a legal blueprint for future cases involving workers who post negative comments on their own social media pages.
The National Labor Relations Board, the five-person body of presidential appointees that enforces federal labor laws and settles workplace disputes, ruled on Dec. 14 that the employees in question can't be fired because of their Facebook comments about co-workers. The ruling means that workers' social media comments are legally protected, much like workers have a right to free speech when they meet after hours.
The 3-1 decision by the labor board is probably going to be used as a legal precedent for similar cases in the future. The board has issued opinions in other cases where social media came into play, but in this the board specifically pointed to workers' protections.
"This is the first one where they decided a firing was illegal," labor board spokesperson Nancy Cleeland said. "This will be the one people cite when they claim they were illegally fired."
The firings were at an agency called Hispanics United for Buffalo, a group that assisted victims of domestic violence in upstate New York. A worker in 2010 believed some of her co-workers were not working hard enough to help their clients, and posted her opinions on her Facebook page. Four co-workers participated in these discussions, all on personal computers and on their own time.
The agency's supervisors said the postings violated policies against harassment and inter-office bullying and fired all five.
The labor board's primary focus is to enforce the National Labor Relations Act, the Depression-era law enacted mainly to protect employees' right to unionize or discuss other work-related situations.
"The board's position is that they're applying long-standing precedents to new media," said Roger Crawford, a partner and an employment law specialist in the Ontario office of law firm Best Best & Krieger.
Crawford said more employers monitor social media sites and, while he doesn't believe this case is the game-changer, he said striking a balance between the free expression of the digital world and the rules of company decorum are leading to many new cases.
One case ruled on earlier this year found that an Illinois car salesman could not have his job back after he was fired because his Facebook comments were posted to mock his employer and were not legally protected comments about working conditions.
Another case that started in 2009 ended when the labor board told an ambulance company in Connecticut that its social media rules were overly broad. However, the case between the employee and the company was settled without a hearing, meaning that no precedent came out of it.
Lynn Hounsley, president of Integrity HR, a Riverside firm that helps firms write human resources policies and employee handbooks, said more companies are including social media rules. Some are conservative and some are fairly lenient, she said.
If postings become a problem, Hounsley said a company should consult an attorney.
"We have to be particular of the language, especially now that the labor board has said what is protected activity," Hounsley said. "And, employers need to be extra careful if they're in a position where they think termination is necessary."
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