There is no Facebook Free Speech
Back in November, I published a cautionary tale about Facebook and free speech in the workplace. Back then I said that you could still be fired for saying dumb shit on Facebook, and that is still true today.
Here is part of what I posted back then in response on to the claims of many social media experts that people now had “Free speech on Facebook”.
Just a word of caution, this case is only a charge, and the decision will be heard in January 2011. It is not yet binding on employers, (although it is a pretty good indication of where things may wind up!) Employees should be very careful NOT to assume that this means anything you say on-line regarding your company or supervisor is ok. That won’t be the case, even if this case is decided as insinuated here.
This thing is far from decided yet, and any decision is sure to be tested. People offering advice from a social media perspective, as well as employees assuming that this notion of “free speech” is like a constitutional right need to be very careful in their assumptions. Protected, concerted activity is a complex legal concept, and does not translate into ” I can say whatever I damn well please about my company and my employer”. It would be very smart to bear this caution in mind.
The NLRB Facebook Settlement
Now the case is over, thanks to a settlement, and once again, people in social media are reporting that people can now say dumb shit on Facebook and get away with it. I have one piece of advice:
This NLRB decision actually had very little to do with the concept of free speech. It dealt with a very esoteric legal standard called protected concerted activity (PCA), which is governed under the National Labor Relations Act and applies to all employees, unionized or not that are protected by the NLRA. PCA occurs when a group of employees engage in the act of discussing terms and conditions of employment with the intention of trying to improve or protect them
An article on Forbes entitled Case Settled: Union Employees, You Can Badmouth Your Boss on Facebook actually references the definition of PCA in their story, touching on it while quoting an NLRB press release. . Here is that quote:
“The company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions,”
Take a note, that doesn’t mention “free speech” anywhere, kids. It doesn’t say it is okay to call your boss an asshole, or mock his or her toupee. It is wages, hours and working conditions, and more importantly, it entails the people discussing do something to change or protect those things. It isn’t just complaining, although complaining probably won’t get you fired. Other stuff still can, so be careful about what you say!
And HR people, you need to know what PCA is so that you can make sure you r handbooks, and social media policies, and policies prohibiting people from discussing their wage rates with each other (PCA!) get properly updated.
NLRB definition of protected concerted activity
Here is the definition of PCA from the NLRB website:
The National Labor Relations Act (NLRA) protects employees’ rights to engage in protected concerted activities with or without a union, which are usually group activities (2 or more employees acting together) attempting to improve working conditions, such as wages and benefits.
Some examples of such activities include:
a) 2 or more employees addressing their employer about improving their working conditions and pay;
b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) 2 or more employees discussing pay or other work-related issues with each other.
The NLRA also protects any individual employee’s right to engage in union support, membership, and activities.
The NLRA protects an individual employee’s right not to engage in union activities or in other protected, concerted activities