Wednesday, November 10, 2010

Free Speech on Facebook as an Employee Right...

Anyone reasonable person knows better than to publicly insult their employer on Facebook. Nevermind what's legal; we don't do it out of fear of the consequences.

Well, one gutsy individual named Dawnmarie Souza, an emergency medical technician, did exactly that to her employer, American Medical Response of Connecticut. She apparently used "impolite language to insult her supervisor" through posting public comments on Facebook.

Then, in a not-so-shocking turn of events, she was fired.

But here's where this story becomes newsworthy. A court case is being brought by a U.S. federal agency, the National Labor Relations Board, on Ms. Souza's behalf. They assert that according to the National Labor Relations Act, "social media activity concerning workplace environments, including personnel, constitute protected speech under the provisions of the First Amendment".

Maybe you buy into that argument, or maybe you don't. However, what's interesting is that it's not one zany individual, nor is it some quirky ideological organization, that's making the case against the workplace firing. It's the United States Government!

To be fair, American Medical Response of Connecticut claims that the Facebook posts were only one factor in Ms. Souza's termination, and that there were other reasons. Now, many people's first instinctive thought might be how most states have "at will" employment - meaning that employers can fire anyone without explaining it and without allowing for free speech rights. However, the argument being made in this case isn't directly focused on employment, but instead is actually centered on "working conditions".

So is restricting an employee's ability to freely comment on social media sites a form of poor workplace conditions? Does it really fall into the same category as the old sweatshops of the early industrial era?

The National Labor Relations Board apparently thinks it does.

The NLRB seems to be overreaching a bit here, but the federal courts will ultimately make the final determination. Regardless of the outcome, it's pretty fair to say that at a time when people's privacy and free speech rights online are rapidly eroding, the very existence of this suit is something just shy of, to use RWW's description, "miraculous".

Still, don't drink the kool-aid just yet. If you read into this development as a total green light to publicly criticize your employer, be prepared to deal with the consequences.


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