By Josh Eidelson
— On a Saturday morning in October 2010, Mariana Cole-Rivera, a domestic violence advocate at the group Hispanics United of Buffalo, began the Facebook thread that would get her fired. She wrote, "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do you feel?"
Within minutes, HUB colleagues began posting supportive comments. "What the Hell," wrote one, "we don't have a life as is, What else can we do???"
"I think we should give our paychecks to our clients so they can 'pay' the rent," said another, "also we can take them to their Dr's appts, and served as translators (oh! We do that)."
By Tuesday, Cole-Rivera and four of the co-workers who'd responded to her had lost their jobs. Their boss said their Facebook thread violated HUB's harassment policy by disparaging a co-worker. The workers took their case to the National Labor Relations Board (NLRB), the federal agency charged with interpreting and enforcing U.S. labor law. A judge sided with them, but now the case is on appeal, and it's poised to help answer a question for the socially networked era: Which Facebook posts can get you fired? As more and more of our daily speech migrates online, business groups are hoping that the NLRB will make it easier for employers to control that speech. It shouldn't.
You might think the First Amendment decides the legal issue here, but it doesn't. The Constitution protects free speech from government interference. In the private sector, however, courts have made management discretion the rule. Employees who don't work for the government and aren't in a union can be fired or punished for almost anything they say, wherever they say it. Business groups say companies need the authority to put the best person in the job and to shuffle as they deem necessary.
Cole-Rivera and the other fired workers have pinned their hopes on an exception to that rule: the protection, in the National Labor Relations Act, of workers' right to engage in "concerted activities" for "mutual aid or protection."
In earlier pre-Facebook cases, the NLRB considered several factors in deciding which speech counts as collective action: whether multiple workers were involved in the discussion in question, whether it related to work conditions, whether it was unacceptably disloyal or malicious, and whether it was intended to instigate activism. "Sometimes griping is the incipient stages of 'Let's do something about it,' " says former NLRB Chair Wilma Liebman. Other times, it's "just griping."
Cole-Rivera says that before she posted on Facebook, she found out her co-worker planned to complain to management about the work ethic of the employees in her organization. She argues she engaged in "concerted activity" by alerting and agitating her co-workers to the upcoming complaint. The idea is that by sacking workers for having the conversation, HUB cracked down on their right to band together to address their workload or defend themselves against potential discipline.
The NLRB will also soon hear appeals on two other related cases. In one, a bartender at Triple Play Sports Bar complained on Facebook that her boss had messed up her tax withholding, and a cook pressed "like" on her unprintable comment. Both were fired. A judge found that both the comment and the "like" were concerted activity and rejected Triple Play's claim that the thread forfeited legal protections just because a couple customers weighed in as well.
In the other case, car salesman Robert Becker said he was fired for posts making fun of the cheap food served at a launch event where he worked. His boss said he terminated Becker for other posts, which mocked an accident at an adjoining dealership in which a 13-year-old drove a Land Rover into a pond. The judge found that posting about the food was protected concerted activity. That's because employees had been discussing them together at work, and if skimping on snacks hurt sales, workers' commissions would suffer too. But the judge upheld the firing based on Becker's boss' testimony that the Land Rover posts, which weren't protected, were the ones that cost him his job.
The upshot of these cases, taken together, is that concerted activity remains a relatively narrow category.
Business groups are hoping that the NLRB will go further in Cole-Rivera's case. U.S. Chamber of Commerce Labor Policy Director Michael Eastman says the board should think about whether to be more sensitive to Facebook posts than it is to what employees say around the water cooler, given the potential for publicity that could damage a company's reputation.
But that would undermine the point of the National Labor Relations Act. Workers' rights to collective action often conflict with owners' desires to control their corporate image. But the former is enshrined in law; the latter isn't. The power of social media to air criticism shouldn't change that.
The authors of the National Labor Relations Act recognized that workers have little leverage in a workplace where managers are free to weed out critics. If losing your livelihood is the cost of speaking up, then many workers won't. Concerted activity will take different forms for different workers — from going on strike, to filling a class action lawsuit (a right the NLRB protected in January), to tweeting in concert. All of those forms of activism deserve protection. Employers shouldn't have any more power to root out dissident employees online than they do elsewhere.
Josh Eidelson is a contributing writer for Salon and "In These Times." He worked as a union organizer for five years.