NLRB Protects Employees’ Privacy on Facebook

Nick Fishman

I think we can all agree that it might not be the smartest thing in the world to refer to or describe your boss as a derogatory term reserved for the male genitalia. One might expect that doing so would be grounds for some sort of corrective action at best. But hey, maybe you’ve just used this term to a small group of colleagues and the boss won’t find out anyway. Maybe so. Now, what happens when you refer to him or her as such on your Facebook page? Shouldn’t you expect to be disciplined or even fired?

No so fast says the National Labor Relations Board. Here’s the back story according to Time Magazine.

Dawnmarie Souza’s comments on her Facebook page didn’t win her any points with the boss, but the rest of us owe her a debt of gratitude. In a rare test of old law on a new medium, she helped us understand just how little the online world differs from the land of bricks and mortar.

Souza’s career as a paramedic at American Medical Response of Connecticut Inc. may not have been too bright even before she called her boss various genital parts in a November 2009 Facebook posting. She had been hauled on the carpet for several incidents of allegedly rude behavior and had further rankled the emergency-response company by asking to have a union representative present when she was to be questioned about one particular customer’s complaint that she had been rude, according to a National Labor Relations Board (NLRB) investigation of the case. The company denied the request, and that, in turn, set off her colorful Facebook flurry. American Medical fired her 23 days later.

The federal National Labor Relations Act prohibits employers from punishing employees, whether or not they are members of a union, for talking about wages or workplace conditions or forming a union. The idea is to ease communication among workers so they can decide whether a union is necessary.

American Medical, the NLRB argued in a complaint filed Oct. 27, 2010, had violated the act in three ways. First, by refusing Souza’s request for a representative of the union of which she and her co-workers were members. Second, by firing her for her posts. And third, by maintaining a “blogging and Internet-posting policy” that “prohibited employees” from, among other things, “making disparaging comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

Well, if the NLRB doesn’t believe that making disparaging remarks about your employer can be construed as offensive then they won’t mind me saying that they are full of s#@!

Sorry, I’ll only go so far in protecting employees’ rights when it comes to background checks on social networking sites. If someone is dumb enough to make these comments in a public forum, they should suffer the consequences. And by the way, why would she want to continue working for this company if she felt this way in the first place? And since this publication is only available to those who read it, I’m sure the NLRB would have no problem hiring us to perform employment background checks on their behalf after these remarks.

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Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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