A few weeks back I wrote about the case of a woman who got fired for saying her boss was a jerk (and worse) on Facebook (“Careful what you say on Facebook – the boss is watching”). In that case, the National Labor Relations Board had filed a suit arguing that the employee’s comment were protected by the National Labor Relations Act, as her termination could be interpreted as suppressing union organizing activities.
I know what you’re thinking. “What about freedom of speech? Doesn’t she have the Constitutionally protected right to say anything she pleases?”
I sought some clarification on employment law from attorney Ronald H. Shechtman, managing partner at Pryor Cashman LLP in New York. You won’t like the answers he had to give.
[ See also: Facebook: The Medium is the message ]
First, those First Amendment rights you think you have? They only apply to the government suppressing your right to free expression. They don’t apply to a private employer, a private club, your spouse, or anyone else.
“We check our First Amendment rights at the door when we enter private employment,” says Shechtman. “If a lawyer in my office wants to put up a political poster on his door saying vote for Sarah Palin or Barak Obama, there’s nothing that stops his employer from saying ‘No you don't’.”
The exception: If you work for a Federal or state agency, they can’t fire you merely for something you say, because they’re legally bound to follow the Constitution. (Though I’m sure they could find another reason if they wanted to.)
In almost every state in the US you’re hired “at will,” which means an employer can fire you for almost any reason, unless it violates some other law -- like the Civil Rights Act or the Americans with Disabilities Act -- or the terms of an employment contract.
Another exception: If you say something like “my company makes products that contain toxic chemicals” and you get fired, you may be protected under whistleblower statutes -- but only if you happen to work in an industry or live in a state that has them.
Even then, says Shechtman, the allegation has to be true, or at least you have to sincerely believe it’s true. You can’t say it just to ruin your employer’s reputation because you’re ticked off.
What about the NLRB case? Saying “my boss is a jerk” (or worse) can be construed as complaining about work conditions, a precursor to unionizing – which is legal under the National Labor Relations Act. But those protections only apply to non-managerial employees. If you’ve got minions working under you, the NLRA does not apply.
And whether you say these things in your cubicle, at the water cooler, in a bar after work, or on Facebook doesn’t make a difference, legally speaking, says Shechtman.
“Saying it on Facebook makes it sexier and causes people to pay more attention,” he says. “But it still comes down to the same analysis: What is the nature and purpose of the speech? Is it an activity the National Labor Relations Act exists to protect?”
The problem with saying it on Facebook, or Twitter, or name-your-favorite-online-gripe-site here: It’s extremely easy to prove you said it, and much harder to keep it quiet. Imagine tweeting something about how your male boss likes to dress up in women’s clothing, only to have it retweeted or shared with people you never intended to see it. Once they’re out there on the InterWebs, these things tend to take on a life of their own.
(See “Anatomy of a Facebook lynching” for an example of what can happen thanks to a single blog post.)
You also may be exposed to defamation suits from the people you’re trashing online -- and you’re not protected by merely saying “in my opinion, my boss is a jerk,” he says. Of course, proving defamation is very difficult. But defending yourself against a suit is also difficult, and expensive.
How about doing it anonymously? You might be OK, but only if the people you’re trashing can’t prove it’s you. And as the RIAA has shown countless times, it’s pretty easy to find the name and address of someone using a pseudonym if you’re motivated enough and have the IP address they were using.
Unless you’re jumping through some serious hoops involving anonymizers, blind relays and Tor connections, Web anonymity is a myth.
“The reality is we’re in a world where we have more and different kinds of communications with a public facet to them,” he says. “If you’re talking in a bar, the reality is that unless someone is standing next to you or sitting across from you, no one else is going to hear it or be interested. But once you put it online, it lives in an almost immutable form, until someone deletes it. It’s like you posted it on a sign.”
The moral here, same as before. Think before you post. If you must dish the dirt, do it offline, over a beer or a glass of wine. It’s both safer and more fun.
ITworld TY4NS blogger Dan Tynan is not a lawyer, nor does he play one on TV. But he'll happily charge you $600 an hour for sharing his opinions. Visit his snarky humor site eSarcasm (Geek Humor Gone Wild) or follow him on Twitter:@tynan_on_tech.