Labor Board: Fired-For-Facebooking Employees Must Be Rehired

It’s no secret that an employer can, and probably should, do a little check-up on your internet presence before hiring you, and possibly afterwards. But as several unhappy people have found out, sometimes they look pretty hard, and have access to information you thought private. It can result in foot-in-mouth moments and occasionally punitive action. That was certainly the case when five workers were fired for their conduct on Facebook.

The post in question was a complaint about someone else’s complaint, and other employees joined in, including the person being complained about. A few days later, they were sacked; their employer said that the posts constituted harassment.

The workers felt their rights had been violated, and took it to the National Labor Relations Board. And incredibly, an NLRB judge has just ruled that all five must be hired back. I say “incredibly” becuase judicial comprehension of tech issues is a serious problem. Judge Arthur J. Amchan seems to have a head on his shoulders, though. He stated that the employees had not forfeited the protection of the law in their speech, which was well within the bounds of normal discussion of workplace conditions for which one can’t easily be fired.

The size of the precedent being set isn’t clear. It’s certainly a victory, but to blow it out of proportion would be a mistake. This was a one-time offense with some coffee-break jabbering — a fairly easy thing for the judge to see. But questions abound. What if it was systemic? What if it was in private messages? What if it had been going on for weeks? Months? What if the person being harassed has left the company?

It’s entirely possible that a company could institute a contract policy in which employees essentially do forfeit their right to private communication. And the line past which behavior becomes not just undesirable but a fireable offense isn’t clear at all. Like many other areas where communication is moving to new platforms, the boundaries have to be tested, and this ruling extends the safe zone by a little bit.