The National Labor Relations Board decision to make termination for cause illegal in the case of an employee’s post on Facebook that criticizes his or her employer constitutes new wine in old bottles. (I know, whine … J)
The right to speech in labor law amounts to the right not to be fired for cause. Obviously it does not absolve an employee of defamation, libel or slander. Also, the speech cannot be personal, as in “my supervisor is a jerk,” but is protected when in service of an opinion about workplace behavior, as in, “my supervisor is unfair.” Furthermore, the employee does not have to work in the public sector or be in a union for this rule to apply; it works in private corporations (profit and not for profit) as well as for non-unionized employees.
What makes this case noteworthy? Facebook. Social Media. The scope and amplification of the Internet. And the proclivity of employers everywhere to control employee expression of the workplace through policy, discipline and termination. The New York Times reported that at least one labor law firm immediately issued a note to clients to check media policies that failed to reflect the decision in this case.
My reflections on this case are threefold. First, if I understand the facts from newspaper reports, it appears to be a good decision. As noted, it does not break new ground in labor law per se, only labor law as it applies to social media. Since the hard-won struggles of the late nineteenth and early twentieth-century labor movement, labor law passed during the New Deal, the Wagner Act ofn1935 in particular, has memorialized the rights of workers to exercise free speech as an integral part of collective organizing and bargaining. It makes sense. How can one decide whether to form a union or in what direction one wants their union to go if one cannot talk about the workplace in serious and critical ways? And it makes sense to extend that right to all employees, unionized or not.
Second, this decision sheds light on the limits of “social media policies.” This reflection speaks to the hesitation that many of us in the IT law and policy business have had to issue IT rules or policies concerning social media. Common knowledge suggests IT should be at the table to develop policies … although guidelines might be a better and more legal approach … but the rules must be consistent with existing labor, communications and higher education law. Thus, if it is an issue involving employees, human relations “own” the policy; for students, the head honcho for students, and provost or dean for faculty, etc. IT can contribute to the discussion (“What is a privacy setting?”), but should not be in the business of setting the rules. Other offices have the obligation to know the law in their distinct subject areas.
Third, don’t get too excited. While important because technology can blur existing lines, this case offers only a slim comfort. The employee cannot be terminated for cause. Most states operate on an “at will” basis, meaning that the employee works at the will of the employer. The employee may be terminated at will too! “Laid off” is one form of termination. At will termination is actionable if the employee can demonstrate that it is a pretext for a termination, but the burden rests on the employee. These cases rely on a a “smoking gun,” such as an internal memo or email, evidence of the plaintiff’s case. Without this kind of evidence, it is usually not too difficult for an employer to come up with benign reasons for termination.
The lesson we take from this case is largely centered in the second point. IT policy should veer away from rules that prohibit employee expression on social networking sites. Give unto Caesar what is Caesar’s … whether it be free speech to the employee or the responsibility of HR or other campus offices to determine labor rules, not IT.