The social media world is still in many ways uncharted territory for HR. Only within the last couple of years has there been an emphasis on using platforms like Facebook and Twitter for recruiting purposes (though LinkedIn was far ahead of the game on that front).

Then came the legal issues. They were complicated, but most HR experts agreed that a company could cover itself with a clear policy on what was and was not acceptable in regard to work-related matters.

However, with the first case of its kind, the federal government may have changed all that. The National Labor Relations Board says a Connecticut ambulance company illegally fired a woman who criticized the company on her Facebook page.

Last year, the woman, Dawnmarie Souza, had been told to prepare a report about her work after a customer complained. That same day, Souza logged into Facebook from home and wrote "Looks like I'm getting some time off. Love how the company allows a 17 to be a supervisor." The “17” was a reference to the company’s code for psychiatric patients. Souza was fired.

The NLRB, which will take the case to court Jan. 25 before an administrative law judge, claims that the company, American Medical Response of Connecticut Inc., violated Souza’s free speech by firing her for making critical statements.

What may turn out to be most important about the case for the HR industry is that in this case, the company did have a clearly defined social media policy, which has become the centerpiece of its defense (though her former employer also says she was fired because of poor performance):

[Company attorney] John Barr said the company understands that workers have a right to talk about wages and working conditions. But he said it stands by its policy against employees discussing the company on the Internet, including social media sites. "If you're going to make disgusting, slanderous statements about co-workers, that is something that our policy does not allow," Barr said.

Whether that will hold up in court, however, could be a question with far-reaching implications for HR, analysts agree (as one commentator wrote,“This story's for everyone who has a job, and a Facebook account”).

The case against the social media policy, from the Christian Science Monitor’s article:

Jonathan Kreisberg, director of the [NLRB]'s regional office in Hartford, said the company's policy is overly broad. He acknowledged that the law protecting worker speech has some limits, such as not allowing employees to disrupt the workplace or engage in threatening conduct. But Kreisberg argued that Souza's Facebook comments did not cross a legal line."Here she was on her own time, on her own computer and on her own Facebook page making these comments," Kreisberg said. "If employees are upset about their supervisor and get together on their own time talk about him, criticize and call him names, they can do that."

It’s still not clear how this case will be resolved, and how it will affect labor law and social media policy in a larger sense. But experts are advising caution:

It may not be wise to take that as carte blanche to go online and type in exactly what you think of your boss. The general rule is that employers can still fire workers for off-color or unsavory things they say when blogging (or facebooking or tweeting) on the job or about their job. "It would be a mistake for people to say that, 'Just because I'm on Facebook, I can say whatever I want,'" said Charles Cohen, senior counsel at the Morgan Lewis law firm in Washington, D.C. "That's the main point."

18 November 2010

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