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Feds Settle Case of Woman Fired Over Facebook Posts 316

Posted by Roblimo
from the keep-your-yap-shut-about-keeping-your-employees'-yaps-shut dept.
Mr.Intel writes "Employers should think twice before trying to restrict workers from talking about their jobs on Facebook or other social media. That's the message the government sent on Monday as it settled a closely watched lawsuit against a Connecticut ambulance company that fired an employee after she went on Facebook to criticize her boss in 2009."
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Feds Settle Case of Woman Fired Over Facebook Posts

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  • This says that companies can't stop employees from commenting using their own device on their own time. It doesn't require them to provide access to social media sites at work.
    • by schnikies79 (788746) on Wednesday February 09, 2011 @12:41AM (#35147096)

      Nor should it. A company should be able to block, or not block, anything they want on company property.

      • by iammani (1392285) on Wednesday February 09, 2011 @12:50AM (#35147146)

        Agreed! But they should not be able fire people for criticizing their bosses or their employer.

        • by TWX (665546)

          Right, as long as they don't do it on company equipment, and to an extent, doing it on company time while on one's own equipment could also be grounds for termination, though that would be because the employee is slacking off on the clock instead of working. This would probably only really apply to hourly employees.

          • Re: (Score:3, Interesting)

            by 91degrees (207121)
            But then the nature of what they say shouldn't be considered.

            Firing someone for using facebook at work would seem a little extreme. A simple request to stop doing that would be considered a more measured first response.
            • by sumdumass (711423)

              I'm going to go out on a limb here and say that the first response was already taken in the computer use policy and possible the handbook where it generally says you can use the work computers only for work related tasks.

              Almost every computer use policy I have written said something to that measure.. Most employee handbooks I have read make that clear too.

              • by 91degrees (207121)
                I suppose technically they could. Seems a bit extreme though. Given the options of verbal warning, written warnings, demotion or dismissal, dismissal seems like something of a nuclear option.

                Excessive internet use is a written warning at worst (probably verbal), and occasional personal use is usually tolerated.
              • by xelah (176252)
                To do that it at least needs to be fully and evenly enforced. Otherwise reasonable use can be tolerated and treated leniently until there's someone a manager doesn't want or like - then it suddenly becomes a firing matter. And then you get sued, for sexual/racial/age/religious/disability/whateverelsethereis discrimination (or flat out unfair dismissal, in this country anyway). Besides, it's not really sensible - in many cases it's going to cost you an awful lot of money and disruption to find someone new, s
                • by TWX (665546)

                  I don't know that I entirely agree that it needs to necessarily be evenly enforced. Everyone tends to rack up infractions whenever they're in an environment with rules, but the number and nature of infractions are what can determine if someone should be terminated, not simply that an infraction has occurred. If an employee excels for the company and the company generally knows and acknowledges this, then the company is more likely to ignore infractions from that employee. If an employee doesn't do good w

              • How does it feel to know that every computer use policy you have ever written has been broken by every employee that has ever been expected to follow it?

                I have never seen an employee with a computer not use it for personal things.

                Ever.
                • by shentino (1139071) on Wednesday February 09, 2011 @11:39AM (#35150690)

                  Just like in China, bureaucracies often make a shitload of rules just to give the higher ups a toolbox of excuses to remove people they don't like.

                  When everybody's breaking the rules you get to be picky about who you punish.

                  Doubly so if your boss can get away with using at will employment as a backdoor loophole for whatever prejudices he wouldn't dare put down in writing or mention in earshot of potential witnesses.

        • That really depends. If there are NDA's or similar privacy/confidentiality agreements in place, surely those should still stand, right?

          (Within the limits that they cannot be enforced where the company is breaking the law)

        • by mc6809e (214243) on Wednesday February 09, 2011 @01:24AM (#35147318)

          So if one of my employees writes somewhere that he thinks I'm a moron or he insults my wife or spreads nasty rumors about my sex life I just have to keep happily giving him my money?

          That's crazy.

          • Re: (Score:2, Insightful)

            by NiceGeek (126629)

            Welcome to freedom of speech, don't want someone to call you a moron? Don't act like one.

            • Re: (Score:2, Informative)

              Yeah, freedom of speech doesn't trump freedom of association. Nor does it apply to private individuals. Your entire outlook on life is coddled and ridiculous.
            • Re: (Score:3, Informative)

              Freedom of speech also implies dealing with the consequences of said free speech.

              • by 91degrees (207121)
                Not sure how that works. Doesn't that mean you have freedom of speech in every country, it's just that the consequence may be your execution?
            • Continuing to employ someone who calls you a moron is moronic.

          • by _KiTA_ (241027) on Wednesday February 09, 2011 @01:32AM (#35147360) Homepage

            So if one of my employees writes somewhere that he thinks I'm a moron or he insults my wife or spreads nasty rumors about my sex life I just have to keep happily giving him my money?

            That's crazy.

            Yes, that's exactly what this states. Because his private conversations in a private place, or even his public conversations in a public place, on his or her own time, are absolutely none of your business.

            From a professional standpoint.

            Just like if one of your employees went to a bar after work and was ranting about you. You would have no justification in firing them for their behavior off the clock like that.

            You are paying for your employee's time, knowledge, and skills. You have to earn their loyalty and respect.

            • Re: (Score:2, Insightful)

              Bullshit. Writing something on Facebook is publishing. If I take out an add in my local newspaper saying my company sucks and I hate them, they have every right to fire my ass.
              • by mikael_j (106439) on Wednesday February 09, 2011 @03:13AM (#35147790)

                I think you are wrong.

                Putting something in print is "publishing" it and thus you extend that to "putting something on Facebook is publishing because it uses text and it is observable by the public". This is IMO false. A status update on Facebook isn't publishing, at least not in the same way that putting an ad in the paper or writing a newspaper article is publishing, nor is it like writing a lengthy blog post. It is more like saying something in public, only you are doing it with text.

                Also, where you live it might be legal to randomly fire people (I know certain US states think it's perfectly reasonable to allow companies to fire you for no reason at all), in a lot of places someone writing something bad about their employer in the paper might be likely to end up with them fired, if the bad things claimed in the paper are false, if they are correct it is more likely that the employer will be afraid to fire the employee because they know the employee will be back with a union-paid lawyer to discuss the unlawful firing of an employee. There are plenty of laws protecting whistleblowers.

                • by mazarin5 (309432)

                  I think you are wrong.

                  Putting something in print is "publishing" it and thus you extend that to "putting something on Facebook is publishing because it uses text and it is observable by the public". This is IMO false. A status update on Facebook isn't publishing, at least not in the same way that putting an ad in the paper or writing a newspaper article is publishing, nor is it like writing a lengthy blog post. It is more like saying something in public, only you are doing it with text.

                  The employee isn't necessarily publishing, but they are making criticism available.

                  </RIAA>

                • by Xaositecte (897197) on Wednesday February 09, 2011 @03:48AM (#35147948) Journal

                  I didn't think you were right at first, but it turns out you are!

                  The legal arguement in this case was:

                  Lafe Solomon, the board’s counsel, said: “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

                  That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization.

                  Additionally, this is a federal labor law, so it applies even in states with At Will employment laws.

            • by Dcnjoe60 (682885)

              What if the boss goes on facebook saying how hot his secretary is and would like to hook up with her? Would that be protected speech, too? I'm pretty sure he would still get charged with harassment and get fired.

              • Criticizing your boss is protected speech. Hitting on your employees is not. Yes, it really is that simple.

          • by jeff4747 (256583) on Wednesday February 09, 2011 @01:35AM (#35147378)

            Nope. Libel and slander are still on the books. Not to mention there's plenty of ways to fire them without bringing up their online behavior.

          • Of course that's crazy. The more reasonable solution, obviously, is to happily give your attorney your money in order to sue the guy for defamation. However, this only works if what the guy says is demonstrably false, so if you really are a moron* and what the guy says about your wife and your sex life really is true, you're SOL.

            Disclaimer: IANAL.

            * Wait, if he thinks you're a moron, you may still be SOL, no matter how non-moron you are. He can believe whatever he wants. It's if he starts spreading these

          • by Ihmhi (1206036)

            Are you kidding?

            First, if he thinks you're a moron and says as much - not to your face, but on their own private facebook page - then as far as this particular jurisdiction that is indeed true. But honestly, firing someone for bitching about their boss (which I imagine a hell of a lot of people do regularly) is petty at best.

            If someone is rude to your face (and you have witnessess) you can get away with terminating someone for insubordination and/or gross insubordination.

            If someone spreads rumors about you

          • by sumdumass (711423)

            Of course not.. You simply find a way to discharge that person without citing those accusations and rumors as being the reason. You can also give them crap job duties, impossible hours, and so on to make them want to quit. Be careful there though, there is a thing called constructive discharge in which someone quitting is turned it around as if you fired them because you made the workplace unbearable or something to that effect.

            Bottom line, no, you do not have to continue to pay them. Just find any other re

          • by moortak (1273582)
            It isn't at all crazy to limit the restrictions an employer can place on an employee during hours they aren't being paid.
  • by mfh (56) on Wednesday February 09, 2011 @12:44AM (#35147106) Homepage Journal

    No just kidding I fucking love my job.

    TBH, I think employers in the States are a little presumptuous over the lives of those who work for them.

    Meddling with your employees only turns them against you. Stop it.

    If you are worried about what people will say about you over social networking sites, then it's time to have better policies that make sense to everyone, and consider your employees first, but this doesn't cover disloyalty, so if you work for Pepsi or Coke and you drink the other company's products on your social media you could still be fired.

    • by TWX (665546)

      I really don't think that something like using a competitor's products instead of products from one's own company would result in too many lost jobs, unless one's job specifically was for doing promotions. Even in that case, I'd think it would apply to a paid promoter providing said product, not simply consuming it. If one is at a social event and the competitor's product is the only one available (as is common with exclusivity agreements with vendors) then it may not be possible to have one's company's o

      • by rsilvergun (571051) on Wednesday February 09, 2011 @01:29AM (#35147344)
        if you're seen drinking a competitors beer. Plus there's been several stories of people fired for political bumper stickers because the company owner didn't agree (it's always right wing bosses firing left wings employees too...).

        I'm surprised this woman could fight. Looks like she won because of Union laws. Once again, yay for Unions.
        • Re: (Score:2, Insightful)

          by Totenglocke (1291680)

          Plus there's been several stories of people fired for political bumper stickers because the company owner didn't agree (it's always right wing bosses firing left wings employees too...).

          Care to provide some support for that claim? Or does it not need support since anyone who doesn't worship the DNC is automatically evil and doesn't need any proof before crucifying them?

          • What makes you think the democrats can be considered "left wing"?

            Slightly less rabidly right leaning does not make you left wing. Not by a long shot

          • Here [clickorlando.com]. Took 5 seconds on google. It was a pretty famous story. Why is it when right wing people see something they don't like they're first and only response is to deny it? Not trying to troll, I'm dead serious. My next door neighbor (who's since lost her house due to an abusive ARM loan they promised she could refinance, yeah right), is hard core right wing conservative & has used socialized medicine to keep herself (open heart surgery) and her children alive. If you ask her about that she just kinda wh
        • by prichardson (603676) on Wednesday February 09, 2011 @04:30AM (#35148134) Journal

          I seriously doubt that if the owner of Lake Louie [lakelouie.com] caught one of his employees enjoying the latest concoction from Dogfish Head [dogfish.com] that there would be any problem. People who make beer know how to enjoy and appreciate beer, even if they didn't make it.

          Maybe you meant those companies advertise beer but actually bottle alcoholic horse urine? Since Budweiser and Miller both bottle the same thing, I could see why they might get a little upset if one of their employees was drinking horse urine from the other company.

        • Service industries (IT, Travel, Banking, Health Care etc.) always subject to abusive working conditions. Unionization will INCREASE productivity on these sectors.

          We need the power and courage to say "No" to your boss and still get paid. It is human rights. Those who screen out people by stalking their facebook account and denied them employment does not worth to be my boss. Period.

          I once mentioned my above view point to a "kid" and he told me to "grow up". Guess what, he is now in jail for mail fraud. That

        • by drinkypoo (153816) <martin.espinoza@gmail.com> on Wednesday February 09, 2011 @08:39AM (#35149060) Homepage Journal

          I'm surprised this woman could fight. Looks like she won because of Union laws. Once again, yay for Unions.

          Once again, boo for Unions, which today exist solely to protect the interests of a privileged few. What we need is labor laws that permit anyone to sue their employer if they should take this sort of action.

    • Re: (Score:3, Informative)

      by Anonymous Coward

      I came when I saw your userid.

    • by Libertarian001 (453712) on Wednesday February 09, 2011 @02:29AM (#35147632)

      There's no such thing as "loyalty" to a brand for an employee. If Pepsi expects me to drink just Pepsi products regardless of the forum or venue that I'm attending then I'll be submitting a claim for cost plus time. That's a minimum two hours travel and two hours work, and there's a good chance it'll be overtime. And I'm claiming mileage as well. Oh, and my corporate-shill rate is higher than my just-doing-my-job rate. I'll consume whatever I damn well please and they're just going to have to get over it.

      • Re: (Score:3, Interesting)

        by Ed Peepers (1051144)

        There is while you're at work. I work at PepsiCo (my views are my own, standard legal disclaimer yadda yadda) and there's no requirement that I must consume only Pepsi/Frito-Lay products all the time. But when I'm at work, I would have to be a complete idiot to bring in Pringles and Coke for lunch. Same goes for work-related events or meals, which nearly always held at a "Pepsi pour" location. It's just good business.

        We're obviously encouraged to visit Pepsi pour locations on our own time, but nobody's

    • Hold it. Me and my employer have a contract. I sell him my knowledge, my time, my experience, my workforce. In return, he gives me money. He neither bought, nor were they for sale, my beliefs, my ideals, my interests or even my loyalty. The latter may be given freely on top of the package if I feel like it. And usually it is if the company's ideals, beliefs and interests correspond with mine.

      If a company does not understand the difference between what's for sale on a work contract and what's not, it's time

    • "TBH, I think employers in the States are a little presumptuous over the lives of those who work for them.

      Meddling with your employees only turns them against you. Stop it."

      It is. With the large # of low-cost illegal and H1-B available out there in the labour market these little rats will find every way to fire your high-cost ass.

    • by shentino (1139071)

      Employment contracts are a lot like EULAs. Forced on the weaker party by a stronger party with all the bargaining chips.

  • IMO directly responding is a much better alternative, and likely will be allowed.

  • isn't this pretty obvious? Telling people what opinions they can and can't express in their own time is not going to go down well.
  • Correct rulling (Score:5, Insightful)

    by delirium of disorder (701392) on Wednesday February 09, 2011 @12:52AM (#35147162) Homepage Journal

    Concerted activity is protected regardless of the medium of communication. In order for workers to organize to improve their lives, they must be free to discuss wages or conditions without facing retaliation from their bosses. In practice this is rarely the case, especially since most workers lack a union to back up their rights. It's good that the courts didn't take capital's side for once.

    • by Lord_of_the_nerf (895604) on Wednesday February 09, 2011 @01:51AM (#35147450)

      As a union delegate, and I've defended a number of people who have had their jobs threatened because of status updates.

      Fortunately our courts (in Australia) have upheld that if it's in the public interest and truthful, it's fine. However, most people without strong representation who are unaware of their rights usually end up with formal warnings or fired.

    • who are happy about Big Nanny Government coming to their rescue in the workplace, are the people hailing aspects of Big Bad Government's Patriot Act expiring in the next article. Another case of Slashdot's "libertarian for me, statism for the other guy."
      • One is about freedom of speech ... and the government protecting it

        One is about freedom... and the government taking it away ...

        No inconsistency here ...?

        • There is also this vile, hateful, racist concept of "freedom of association." There used to be a time when one could choose with whom to work. Thanfully, noone protects this freedom now.
  • by Just Another Poster (894286) on Wednesday February 09, 2011 @12:59AM (#35147194)

    ...I should be able to fire them, for whatever reason I choose. I guess that's the way it was before freedom of association in America was killed off. It may be bad business, and I personally wouldn't want to work for anyone who had such a stringent policy, but any employer should be free to make such decisions, and be free to either benefit or suffer the consequences.

    • The problem with that is that you then get people firing someone because they are black, female, gay etc. Its the employees who suffer most of the consequences, especially at times or high unemployment and in low skilled jobs.

    • by sjames (1099)

      No. Not until we have a social safety net that makes being fired not such a big deal. Otherwise there are too many people who would demand sexual favors and complete subservience from employees they knew to be in a precarious financial condition.

    • by crafty.munchkin (1220528) on Wednesday February 09, 2011 @01:25AM (#35147322)
      following your line of thinking... so if the really hot secretary you hired won't blow you, you can fire her?
      • by Kokuyo (549451)

        Something similar came to my mind, too.

        Frankly, the original poster is right... but only in an environment where the worker can expect to be able to support himself and his family even if he was fired or chose to switch jobs.

        This freedom would have to go both ways and not only from a legal standpoint. Since companies have strived to work more efficiently (meaning with less staff), expecting that everyone will alwaqys have a job has become naive. But as long as you, as an employee, cannot expect to find new

        • by Kokuyo (549451)

          Ye gods, the mistakes I make early in the morning... I'd LOVE for our governments to try basic income...

          • The only way I would agree to "basic income" is if the government required "basic work" in exchange. (Invalids & their ilk except.)

      • by hellop2 (1271166)
        Yeah, I think that was precisely his point. Besides, who wants an ungrateful employee?
    • by jeff4747 (256583)

      I guess that's the way it was before freedom of association in America was killed off.

      So it was better back when you could limit your employee's freedom of association?

    • by JumperCable (673155) on Wednesday February 09, 2011 @02:21AM (#35147594)

      If I'm the one compensating them I should be able to fire them, for whatever reason I choose.

      The problem with that is that if you are working for someone else, as does 99% of the working US citizens, suddenly you have to watch what you say on your own time. I find that incredibly uncomfortable. In fact a large percentage of me speech is throttled because I am well aware that my employer can fire me for almost any reason or for no stated reason at all.

      Our life off the clock should be ours to live as we wish. How many of us work for people who have conservative christian leanings? What if that employer is backing some serious overly conservative bible thumping organizations that are trying to limit people's rights and freedoms. I would like to be able to openly protest and fight against those efforts while not at work without fear of being fired.

      • Actuuuallllly... when you're working for a conservative Christian you can be fired if it's for religious reasons. Aka, if a minister is seen drunk the church can fire them since it violates the religious standards of conduct. But it's limited to church employees.

        • by PRMan (959735)
          I think he means that he works for a Christian in a secular job. At my last job, I was targeted and disliked for being a Christian. So it goes both ways, I assure you.
      • by roman_mir (125474)

        Being comfortable - is that a 'basic human right' or something?

        Any regulation that limits power of employer to fire an employee also limits the willingness of employer to hire more employees.

        How many businesses do not go past 49 employees because of the medical insurance requirement? How many businesses do not hire minorities/women/people with disabilities, etc., because those are guaranteed government protection against basically being fired by private companies?

        Starting/small businesses cannot afford any

        • > Being comfortable - is that a 'basic human right' or something?

          It's not really so much being comfortable, but being able to freely and openly express my political opinions on my free time, when I am not at work I think should be a basic human right. I don't want to sue my employer. I just don't want to be fired when my political opinions conflict with my employer's political opinions despite the fact that I am smart enough not to bring it up at work.

    • by Eivind (15695)

      The problem with that is that it sidesteps any and all worker-protection laws completely, particularily in areas an times with high unemployment.

      It's infact NOT okay to fire people over race, over sex, over age, over religion, over a host of other things that are irrelevant to the performance of a worker. We have actual *laws* decided by democratically elected politicians which state in clear terms, that these actions are not okay.

      These laws, are completely moot if combined with totally at-will employment.

  • by Weirsbaski (585954) on Wednesday February 09, 2011 @01:09AM (#35147244)
    Does it go both ways? The boss is free to criticize their employees on facebook too?

    I'm thinking maybe American Medical Response of Connecticut is about to have less to say about the web, and more to say on it.
  • I thought people who worked in "Work at Will" states could be fired for any reason (or no reason at all, so long as it didn't run up against discrimination laws. I thought Freedom of Speech only applied to the government's control, not private employers.

    • by nedlohs (1335013)

      There is more to the law than just discrimination laws and the first amendment, in this case 29 U.S.C. 157 is the issue: http://www.law.cornell.edu/uscode/uscode29/usc_sec_29_00000157----000-.html [cornell.edu]

      "concerted activities" include discussing work related issues - punishing a worker for doing so is against the law (at least those not excluded from the Act such as independant contractors and government workers). And the NLRB was arguing that facebook posts about work related issues are under that blanket, and s

      • It's great that complaining about work related issues is protected. But, for example, if I want to bash (without liable or slander) my employer's favorite anti-gay-marriage organization on my face book account (or myspace, or blog), it is disconcerting to know that my employer would be free to give me the axe over that.

        Am I correct that such speech is not protected in "Work at Will" states?

    • by Tim C (15259)

      I thought Freedom of Speech only applied to the government's control

      The text of the First Amendment:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      Seems pretty clear; it only covers laws made by Congress (not even by the States as I read it, but IANAL) not the actions and policies of companies or individuals.

      Even I knew the "Congress shall make no law" part at the start and I'm not even a Yank.

      • Yes. I knew that too. I was just wondering if I had any protections from adverse actions of my employer if he doesn't like my federally protected free speech. Being free from govermental oppression due to speech is great. But there is still the unaddressed tier where rich business owners can silence you.

  • Lamebook (Score:4, Funny)

    by mr100percent (57156) on Wednesday February 09, 2011 @03:09AM (#35147778) Homepage Journal

    Behold, Lamebook captured it all so well in one post [lamebook.com]

    • by coofercat (719737)

      Isn't the link to a completely different case, in a completely different country? TFA mentions a Connecticut ambulance company, but the link is to something that could very well be British (it mentions a P45 [wikipedia.org]) , which I think is unique to the UK).

      (IMHO, the example you link to is far less unreasonable - adding your boss as a 'friend' and then slagging them off isn't very bright, and if the boss's comment is anything to go by, there were other reasons to fire the employee, and the FB post was the 'last straw'

      • Yes, I meant Lamebook captures the issue in an excellent example, not the actual posting in question.

  • Saying bad stuff about your manager in a public forum is bad for the company. What's bad for the company, is bad for you. Whenever I need to criticize my manager, I do it in private; just the two of us behind a closed door. I was once in a department, where one guy always tried to pick a fight with the manager in department meetings, and get others to join in an insurrection. Of course, the manager had no choice, but to assert his authority. So the guy never got any of his suggestions approved, even

  • by Evtim (1022085) on Wednesday February 09, 2011 @10:57AM (#35150242)

    I know how to fix the problem of employer-employee relation and as a bonus the majority of the problems of civilization will be dealt with too.

    Here it is: The active, working population on Earth is N and remains N (slight fluctuations of course). The available jobs are always N+1. End of troubles. Forever.

    There can never be fair exchange and fair deal if the supply of people is greater than the demand. In strict economic sense the human life and effort are the cheapest commodity on the planet. A racing horse costs more than a man. A tiger does (there are few hundred of them left in the wild). The list is endless....
    Are we surprised that things go wrong? Take a historical example - the lives of peasants during the Middle ages in Europe. Their situation drastically improved after the Plague. There were simply not enough left to work the land. So Feudal masters suddenly became more peasant-friendly.

    The bonus: Flat population with ever increasing knowledge and ever advanced technology means ever more possibilities per person. Until we arrive at the real communism (as opposed to the fake thing attempted in the 20th century) - air, water, food, shelter, education and health care are available to everyone, basically for free. I know that I lost any possible mod points by mentioning communism (and even more for suggesting that scarcity is not fundamental "law" of the Universe), but I urge you to meditate on this - limited (but sufficient) population in practically unlimited Universe. The absolute affluent society. Sustainable and rich - not the bloody Ponzi scheme we have now. The security in numbers is achieved. Now we need to stop being stupid animals and become truly human...

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