Facebook, Free Speech, Social Networking Websites, Technology

Insulting Your Boss Online Is Now Protected Speech

In 2009, a paramedic in Connecticut went home and complained about her boss on Facebook. Then she got fired.

“Love how the company allows a 17 to be a supervisor,” 42-year-old Dawnmarie Souza wrote. A “17” is the code her company, the American Medical Response ambulance service, uses for a psychiatric patient. She also called her boss a “scumbag as usual.” Several people joined in the discussion thread.

Her company’s blogging and Internet posting policy prohibited employees from saying anything negative online about the company or its employees.

The National Labor Relations Board found out about Souza’s plight and filed a complaint against the company. In February, AMR agreed to change its Internet policy, as part of a settlement that fundamentally changes the consequences of poor Facebook judgment….

From CNN:

The NLRB said AMR’s Internet posting policy was “overly broad” and “contained unlawful provisions.” The complaint called out a specific AMR policy that prohibited employees from making negative remarks on the Internet about the company or its employees.

The NLRB said that policy was in violation of the National Labor Relations Act, which gives employees the right to discuss “the terms and conditions of their employment with others.”

As part of the settlement, AMR said it would revise its policies so they do not “improperly restrict” employees from discussing their employment outside of work.

It’s a strange shift. People used to avoid becoming Facebook friends with bosses and co-workers to avoid this exact situation, but now you can publicly call your boss a psycho and it’s OK.

Growing up, I was forced to learn what was appropriate to post online. In middle school, if I wrote a too-whiny Xanga blog (what can I say? I was a child of the ‘90s), Mom would somehow always find it and force me to take it down.

My parents tried to teach me to ask myself, “What if this were on the front page of the New York Times?” before I typed anything. And as soon as I got to college, professors and career counselors made sure every student knew that future bosses would scour everything we had ever put on the Internet to find reasons not to hire us.

Now, in the age of the overshare and anonymous commenting and the death of the telephone, it’s harder than ever to not say things online that are potentially objectionable. I like to think that I have reached some sort of equilibrium between snark, sincerity and the occasional F-bomb-filled Gchat status.

Many people haven’t reached that equilibrium. My parents struggle to figure out the online etiquette I grew up learning. My dad periodically feels the need to censor his friends on Facebook. But Souza’s case may be an indicator that forcing people to watch their words online is becoming a lost cause.

In an interview with CBS, Paul Callan, a media law professor at Seton Hall Law, said Souza’s case “has expanded the free speech rights of American workers… If they are communicating about the workplace, and they’re talking about their supervisors, then it’s a protected activity.”

The case has a unique set of facts that affected its outcome. Souza made the comments at home, not at work. Several people joined in the conversation. This isn’t a free pass to talk smack about work all the livelong day. But it’s another step employers have to take toward broader acceptance of workers’ Internet personas, color commentary and all.

Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or e-mail him at cdanzig@gmail.com. You can read more of his work at chrisdanzig.com.

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