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Working In These Times

Wednesday, Nov 24, 2010, 11:35 am

Time For an Upgrade? Labor Rights Fall Short In Facebook Firing

BY Akito Yoshikane

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With the emergence of social media, workplace conversations that used to take place near the water cooler have shifted to the Internet. More people are using platforms like Twitter and Facebook to vent frustrations about their jobs, and several labor cases have emerged recently where individuals have been punished for comments posted online.

Earlier this month, the National Labor Relations Board (NLRB) filed a complaint against an ambulance service for illegally firing an employee who lambasted her supervisor on Facebook.

While the conflict certainly raises freedom of speech issues, it also tests the boundaries of current labor laws and whether they can protect workers' rights in the digital age. The NLRB is now arguing for the first time that workers' criticisms of employers on social networking sites are protected by federal labor law.

The National Labor Relations Act (NLRA) gives employees the right to discuss their working conditions or unionization, and prohibits employers from punishing workers for doing so. The NLRB alleges that the employer, American Medical Response, violated the NLRA by punishing the worker, Dawnmarie Souza, over her Facebook comments as part of an “overly broad blogging and Internet posting policy.” The NLRB also says the Connecticut-based company denied union representation to Souza during an internal performance report.

The crux of the issue is deciding whether or not Souza’s Facebook comments (she referred to her boss a psychiatric patient) fall under “protected concerted activity.” In other words, if it is decided that the online comment is a conversation with co-workers, it would fall under the the NLRA law that allows employees to discuss workplace concerns. The company denies this claim, saying that Souza’s actions do not fall under “concerted activity” and that she was fired based on “complaints about her behavior.” (The New York Times notes cases in which a worker disparaging of a supervisor was not entirely protected, further complicating how this case will unfold.)

In the United States, the legal hearing for Souza’s dismissal is scheduled for January. But despite the NLRB’s efforts to enforce labor laws, one wonders if the current NLRA regulations are adequate.

This is hardly the first time an employee has been fired due to social media. In fact, the number of U.S. workers who have been fired for violating a company policy has grown. A 2009 study by the Internet security firm Proofpoint found that employee-related problems involving social networking increased from 12 percent the previous year to 17 percent. U.S. companies also fired twice as many employees - growing from four to eight percent - for violations on websites that include Facebook.

(It is not only Americans who are facing punishments for online speech. In China, a 46-year-old woman was recently sentenced to a year of hard labor for “disrupting social order.” Cheng Jianping re-published a sarcastic comment by her fiance, who suggested that people smash a Japanese pavilion at the Shanghai Expo. The human rights group Amnesty International urged the Chinese government to release Cheng, and added that she may be the first Chinese citizen to become a prisoner of conscience because of a single Tweet.)

Whether domestically or abroad, the convergence between social media and labor rights is a relatively new phenomenon. While labor cases related to social networking have grown, there doesn’t seem to be any far-reaching domestic or international laws governing employee protections for union or worker-related activity online. Currently, employers set their own company-wide policies, but fewer than 10 percent have actual social media guidelines. And unlike Europe, American employers have loose guidelines to search a potential employee's private information.

In the United States, the NLRA, enacted in 1935, was recently criticized for being out of touch with workplace issues. Similarly, Cheng’s labor camp sentence has wide implications for international labor rights. Companies, workers and citizens around the world are incorporating these new communication mediums. Additional workers' rights issues related to social media will likely emerge in the future—so perhaps it’s time for a legal upgrade.

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Akito Yoshikane is a freelance writer based in Chicago.

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