You Can Now Talk Shit About Your Boss Online, Kinda


Good news for disgruntled oversharers: federal regulators are forcing employers to stop firing workers based on online shit-talking.

Social media policies typically warn employees that anything they say on Facebook, Twitter, et al can be used against them. And everyone has that friend’s cousin’s sister’s friend who posted a status about her bitchy co-worker and subsequently got fired.

But the National Labor Relations Board says “workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook,” according to the New York Times:

“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters. “All we’re doing is applying traditional rules to a new technology.”
The labor board’s rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies – like bans on “disrespectful” comments or posts that criticize the employer – if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.

Of course, rulings are circumstantial. Here’s an example of what the labor board deemed an unlawful termination:

At Hispanics United of Buffalo, a nonprofit social services provider in upstate New York, a caseworker threatened to complain to the boss that others were not working hard enough. Another worker, Mariana Cole-Rivera, posted a Facebook message asking, “My fellow co-workers, how do you feel?”
Several of her colleagues posted angry, sometimes expletive-laden, responses. “Try doing my job. I have five programs,” wrote one. “What the hell, we don’t have a life as is,” wrote another.

While everyone agreed that the Artizona Daily Star police reporter who tweeted comments such as “What?!?!?! No overnight homicide. … You’re slacking, Tucson.” because he was bored with the lack of news deserved to be fired.

The rulings make sense: expressing general frustration with your co-workers is pretty run-of-the-mill, non-discriminatory venting. (Weird to do it on Facebook, where everyone can see it, instead of behind other’s backs like normal humans, but I guess this is the future. Maybe try SnapChat?) But a newspaper reporter shouldn’t publicly express his wish for more people to be murdered, even jokingly.

Some corporate officials say the N.L.R.B. is switching up their social media standards to stay “relevant,” i.e. power-trip. Burn.

But, like it or not, most people live a fair portion of their lives online and it would be wrong not to adapt standard labor laws as the times change, especially if (as the general counsel claims) many companies’ social media policies currently “illegally hinder workers’ exercise of their rights.” That’s why labor lawyers are now advising employers to have specific social media standards rather than blanket policies:

Do not just tell workers not to post confidential information, [one labor lawyer] said. Instead, tell them not to disclose, for example, trade secrets, product introduction dates or private health details.
But placing clear limits on social media posts without crossing the legal line remains difficult, said Steven M. Swirsky, another labor lawyer. “Even when you review the N.L.R.B. rules and think you’re following the mandates,” he said, “there’s still a good deal of uncertainty.”

Complicated? Certainly! But thus are workplace politics, whether by the water cooler or on Gchat.


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