Getting Lawyered Up on Facebook

News from Connecticut today as a National Labor Relations Board backed case is set for a hearing regarding a plaintiff who was claims to have been fired for making comments about the work place on her personal Facebook account. The details include some key hurdles: she posted on her own time, from her home computer; however, business had a policy in place she was aware of.

The first major takeaway on this: there is no ruling. The item that started today's media frenzy was the announcement that the case would be heard by the NLRB. Kashmir Hill at Forbes has a solid one-stop blog post with most of the details and cautions against thinking this is settled law. Far from it, and if NLRB finds for the new case, it will be going against it's own previous ruling in a case filed against Sears. From Hill's blog:

Sears’s policy is designed to “maintain the company’s reputation and legal standing.” On a list of topics that associates can’t discuss on social media was, “Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” It also advised employees not to talk about drugs or to use profanity.


To see the actual NLRB memo on the Sears case, jump here.

The questions become: was the policy overly broad in the Connecticut case announced today, did it limit free speech, was it a legal condition of employment.

Based on the first media accounts, this does not look like a blanket endorsement of going home tonight and telling the world exactly what you think of your boss/coach/co-workers/etc. Nor an across the board blow to social media policies, either on campus or at the workplace.

There is a very interesting difference in how the story is being handled by legacy media and networked or computer industry media. The "regular" media is trumpeting the first amendment side of this hearing. One example of the breathless victory:

In what has been called a ground-breaking case, the United States National Labour Relations Board has accused a company of illegally sacking an employee after she criticised her supervisor on her Facebook page.

The AP story follows similarly on many legacy media:

A Connecticut woman who was fired after she posted disparaging remarks about her boss on Facebook has prompted a first-of-its-kind legal case by federal authorities who say her comments are protected speech under labor laws.

Same for Washington Post.

Those with more time around social media are quick to point out it is not. As today's CNET first coverage noted:

Invoking scatological language when describing the relative merits of your job is, of course, a time-honored American tradition. So is firing employees who do it to your face.

Interesting that one of the "traditional" news links was NPR and their AP story, another NPR blogger falls more in line with the networked media by pointing out if you hate your boss on Facebook, NLRB may back you but you could still be in plenty of trouble.

Among the items I noted so far:

It is an NLRB hearing. It isn't in a "regular" court of law.

It's getting a lot of coverage today like it is a first amendment case. It clearly is not. The worker is saying she was fired for the comments; the employer is saying it was a series of events. Can anyone say "Juan Williams"?

Most interesting -- and missing from the first AP stories -- was the repercussions on the poster. The item that led to trouble included the assertion that the supervisor she was mad at was a "17" which was code/jargon for a psychological patient. (Hello, Juan Williams, part deux). I pose the question for my more legal followers, does the supervisor now have a slander/libel action for being accused of being crazy (and I deliberately list both -- is Facebook "spoken" or published). As the producer of content and the publisher of the content, the worker would appear in my opinion to be "media" now.

Several lawyers have come out to say they believe it reinforces the worker position, but none have said that if you are asked as a condition of employment to sign a social media policy or confidential information policy that it would not be trumped by today's ruling.

The one thing I can say with certainty today -- this will be just the starting point -- a case to launch a thousand briefs.

And, for the record, I composed and wrote today during my "lunch hour" as I'll be working through the traditional noon time frame.