Ok Peter, I Need Your Input Please
Peter: As an employer do you think you should have or do have a right to fire Diane (couldn't resist, sorry -- LOL) if she trashes you on Facebook? Please assume for the question facts not in evidence, i.e., you are Diane's employer and her employment contract, if one exists, can't be reasonably construed to give her immunity from such obnoxious behavior.
Why shouldn't an employer be free to dissociate himself from an employee who badmouths him (and thus his business) in a public forum? Free speech? Where's the state action? Besides, free speech is not absolute and doesn't entitle an employee to avoid the consequences of her disparaging statements.
So why did the NLRB preside over the settlement of a case by an employee of American Response of Connecticut Inc., which fired her for posting negative comments about it on Facebook?
The employee, Dawnmarie Souza, also alleged that she was denied union representation and I'm not sure how much of a factor that might have been in the settlement.
But under the settlement, the employer agreed to revise its "overly broad rules" so that they don't improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work, and that they don't authorize discipline or discharge of employees for engaging in such discussions.
Granted the case was settled, so it doesn't establish a formal precedent, and granted I don't even pretend to have nearly enough facts. It just bothers me that we seem to be going so far out of our way to punish the evil business people in this society that we're losing sight of their freedoms too, including freedom of association.
I've never been a labor lawyer, nor did I take labor law as an elective in school, to my later regret, but the general rule(s) used to be in Missouri at least that private sector employees without employment contracts were considered "employees at will" and could be fired by the employer for any reason except for such things as discrimination or the employer violating its own rules. Union employees, of course, are a different animal.
As a lawyer I don't want to read too much into this case or try to stir emotions about this particular case without benefit of all the facts. (Even the suit against McDonald's over the hot coffee was apparently much less egregious once the facts were better understood). So I fully recognize that in this particular case there may have been some legal justification (employer rules, contract, course of dealings with other employees, etc.) that would warrant an employee-favoring settlement. My point here is not to criticize this case, but to suggest that if a broad principle emerges from it that precludes employers for firing at will employees for bad mouthing them in public, including FB, I don't think that's a good development.
So Peter, what say you? Diane?
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Re: Ok Peter, I Need Your Input Please
OK, Diane. Now would be a good time to take down those (very amusing, I admit) "photo illustrations" you posted after the last Rico boardroom meeting.
Re: Ok Peter, I Need Your Input Please
Jeez Louise. I would expect to be chastised sternly if not fired altogether for badmouthing Peter on facebook.
But apparently students can insult and badmouth their teachers on facebook, and the ACLU considers it a protected form of free speech.
Sep '10
Re: Ok Peter, I Need Your Input Please
I'm still shocked that there's an actual Rico boardroom. I thought you guys were just some kind of virtual chat room with a web page.
Re: Ok Peter, I Need Your Input Please
Pseudo: Did you say RICO? Conjures images of Peter as mob boss and Diane as chief lieutenant. Thanks for allowing me to continue this Diane-slandering meme.
Sep '10
Re: Ok Peter, I Need Your Input Please
David Limbaugh
Pseudo: Did you say RICO? Conjures images of Peter as mob boss and Diane as chief lieutenant. Thanks for allowing me to continue this Diane-slandering meme. · Feb 8 at 8:21am
Ack!
Sorry, didn't mean to bring back memories of Guiliani busting into the California offices with Elliot Ness in tow. Though we can console ourselves that it would no longer be Eliot Spitzer.
Note to Diane: I've always spelled it Geez Louise. Is there a definitive spelling on this?
Re: Ok Peter, I Need Your Input Please
Pseudodionysius
Note to Diane: I've always spelled it Geez Louise. Is there a definitive spelling on this? · Feb 8 at 8:26am
The dictionary on my Mac:
jeez (also geez): exclamationn; a mild expression used to show surprise or annoyance
geez: exclamation; variant spelling of JEEZ
Oct '10
Re: Ok Peter, I Need Your Input Please
Not to get serious, well, really to get serious, we have lost the concept of employment at will along with most of the characteristics of the independent American. Personally, for my entire working lifetime I have always refused an employment contract, and have never offered one to an employee. If I'm a lousy boss, I hope that the people I had employed could call me an a-- to my face, and then better their lot by walking out on me. That is also the relationship I have always had with my employers (short military service period exempted).
I guess tough is now only a word applied to an unsuitable steak in a good restaurant.
May '10
Re: Ok Peter, I Need Your Input Please
Diane Ellis, Ed.
Pseudodionysius
Note to Diane: I've always spelled it Geez Louise. Is there a definitive spelling on this? · Feb 8 at 8:26am
The dictionary on my Mac:
jeez (also geez): exclamationn; a mild expression used to show surprise or annoyance
geez: exclamation; variant spelling of JEEZ · Feb 8 at 8:31am
Most people prefer the "geez" because it avoids the appearance of the word it is avoiding by stopping short of adding "us" at the end...
Sep '10
Re: Ok Peter, I Need Your Input Please
Keith Preston
Diane Ellis, Ed.
Pseudodionysius
Note to Diane: I've always spelled it Geez Louise. Is there a definitive spelling on this? · Feb 8 at 8:26am
The dictionary on my Mac:
jeez (also geez): exclamationn; a mild expression used to show surprise or annoyance
geez: exclamation; variant spelling of JEEZ · Feb 8 at 8:31am
Most people prefer the "geez" because it avoids the appearance of the word it is avoiding by stopping short of adding "us" at the end... · Feb 8 at 8:45am
Really? I just liked it because it rhymes. If pressed I would have thought Cheeze Louise sounded vaguely misogynistic, hence the kinder, gentler version above. Oh, well.
Re: Ok Peter, I Need Your Input Please
I'm uncertain about the legal ramifications, David, but if Diane badmouthed me on Facebook, I'd a) fire her, and, b) claim that I was doing so because of all the complaints about her I'd received from you.
Problem solved?
Re: Ok Peter, I Need Your Input Please
Peter Robinson: I'm uncertain about the legal ramifications, David, but if Diane badmouthed me on Facebook, I'd a) fire her, and, b) claim that I was doing so because of all the complaints about her I'd received from you.
Problem solved? · Feb 8 at 10:09am
Peter:
As Sam Kinison told Rodney Dangerfield in Back to School (did I already use this quote): "I like the way you think. I'm gonna be watching you."
Aug '10
Re: Ok Peter, I Need Your Input Please
Pseudodionysius
Keith Preston Most people prefer the "geez" because it avoids the appearance of the word it is avoiding by stopping short of adding "us" at the end...
Really? I just liked it because it rhymes. If pressed I would have thought Cheeze Louise sounded vaguely misogynistic, hence the kinder, gentler version above. Oh, well.
As a kid, I got in trouble for saying "geezes" out loud. In my mind, I was saying the plural of "geez", completely oblivious that it sounded exactly like the name of our Lord and Saviour.
It was very confusing, because nobody explained to me why the plural of "geez" was a bad word. I was always reprimanded without explanation. I had to figure out for myself the homonymic implications.
Aug '10
Re: Ok Peter, I Need Your Input Please
What if she were to merely make fun of James Lileks' canary-yellow muscle shirt?
Re: Ok Peter, I Need Your Input Please
David Limbaugh
Peter Robinson: I'm uncertain about the legal ramifications, David, but if Diane badmouthed me on Facebook, I'd a) fire her, and, b) claim that I was doing so because of all the complaints about her I'd received from you.
Problem solved? · Feb 8 at 10:09am
Peter:
As Sam Kinison told Rodney Dangerfield in Back to School (did I already use this quote): "I like the way you think. I'm gonna be watching you." · Feb 8 at 10:16am
I would've preferred for the sake of this exercise that we use the fictional employee "Schmiane." :(
Jul '10
Re: Ok Peter, I Need Your Input Please
David, I'm not a lawyer, just a human resources guy, but here's my take:
California is an employment-at-will state, subject to three exceptions.. So Diane is toast.
Since the case you're referencing is under jurisdiction of the NLRB, that has to mean the woman is a union employee, so her union's contract supersedes employment at will.
My guess is every company in the country is going to have to update their employee manuals and union contracts to address the issue of statements made by employees in social media venues.
In any event, Peter can't fire Diane. She's his go-to gal whenever he forgets his computer passwords.
Peter:
"Diane, Diane, I can't sign onto the site."
Diane:
"Member name Puppydog. Password Kittens."
Peter:
"Upper case? Lower case?"
Diane:
"Peter, put one of your boys on the phone..."
Re: Ok Peter, I Need Your Input Please
This is interesting. Especially the Diane vs. Peter example, which makes me feel like I'm a law student.
If Diane badmouths Peter on her web-page, or blog, that seems to me to be a public act. But on Facebook, in which you can reasonably say you were communicating only with your network of friends, I think Diane has a case. Diane, for instance, can mouth off about Peter all she wants in her home, out with friends, in a private email, right? While it's possible that someone might overhear her -- or in the case of Facebook, someone (me) might "Like" her comments about Peter and thereby thrust it into his newsfeed, I'm not sure that's a firing offense.
In the case of Ellis vs. Robinson, I think I side with Ellis.
Dec '10
Re: Ok Peter, I Need Your Input Please
How have we gotten to the point where someone has to actually ask the question, "am I allowed to fire this person?" We have lost all sense of what it takes to run a business (i.e. someone's risk of capital) in this country. No one OWES anyone a job. People should be able to be fired at will, at any time. Period. If I am paying you my own money to do a job, and one day I don't like the job you are doing, why should anyone, including the state, be able to now force me to continue paying you my money?? It is beyond ridiculous.
Short answer: You can say what you want about whoever you want. It's a free country and you have free speech rights. But you should expect to get disciplined or canned as a result. Protection?? Ridiculous.
I am a contractor/consultant, by the way. I do computer programming. I always thank my clients/employers and I always try to do the best I can. When they end my contracts, I thank them for having had the opportunity. That is as it should be.
Re: Ok Peter, I Need Your Input Please
Kenneth:
In any event, Peter can't fire Diane. She's his go-to gal whenever he forgets his computer passwords.
Peter:
"Diane, Diane, I can't sign onto the site."
Diane:
"Member name Puppydog. Password Kittens."
Peter:
"Upper case? Lower case?"
Diane:
"Peter, put one of your boys on the phone..." · Feb 8 at 10:33am
Ha! You don't even know how close to reality you struck with this exchange!
Re: Ok Peter, I Need Your Input Please
Kenneth: David, I'm not a lawyer, just a human resources guy, but here's my take:
California is an employment-at-will state, subject to three exceptions.. So Diane is toast.
Since the case you're referencing is under jurisdiction of the NLRB, that has to mean the woman is a union employee, so her union's contract supersedes employment at will.
Astute observation, Kenneth, and one that occurred to me before posting, since I'm completely ignorant of NLRB and its scope/jurisdiction. So I googled it (I did not do real legal research) and found a statement that it covers non-union employees against discrimination as well. I don't quite understand how that works or why, but nothing is surprising these days. So, I still don't know if you're correct or not. Like I say, my assumption was the same as yours, but this nlrb site seems to say we are wrong. Don't you know how much joy it gives this agency to boast of the expansiveness of its jurisdiction/power/reach.
Re: Ok Peter, I Need Your Input Please
Rob Long: This is interesting. Especially the Diane vs. Peter example, which makes me feel like I'm a law student.
If Diane badmouths Peter on her web-page, or blog, that seems to me to be a public act. But on Facebook, in which you can reasonably say you were communicating only with your network of friends, I think Diane has a case. Diane, for instance, can mouth off about Peter all she wants in her home, out with friends, in a private email, right? While it's possible that someone might overhear her -- or in the case of Facebook, someone (me) might "Like" her comments about Peter and thereby thrust it into his newsfeed, I'm not sure that's a firing offense.
In the case of Ellis vs. Robinson, I think I side with Ellis. · Feb 8 at 10:38am
Rob: I hereby rule your comments out of order because they don't support my position. Even if your point has theoretical legitimacy it will be excluded from consideration.