In Texas, You’re On Your Own
I continue to be amazed at the repressive nature of a great deal of discourse online about the ‘obvious’ and ‘inherent’ need for individuals to self-censor online unless they are willing to lose their jobs.
The newest example is the following piece by Jon Hyman, who has a lot of badges on his site proclaiming his status as a top 25 this and a top 100 that. And - surprise - he is a lawyer.
After mentioning the brouhaha arising from Voula Papachristou’s racist remarks that led to her being tossed off the Greek Olympic team last week, Hyman goes on to make a sweeping overgeneralization, basically asserting that employers can fire workers far saying anything that annoys them:
Jon Hyman, Does your social media policy educate about being “profersonal?”
If an employee doesn’t want something they say online to affect their employment, they shouldn’t post it. We can debate whether an employee should lose his or her job for something non-work-related he or she posts on his or her personal time. If, however, someone can connect an employee to his or her place of employment through an online profile, what is posted becomes fair game for an employment decision.
The takeaway might simply be that employers remind their employees to “be professional” online, and that businesses will hold employees accountable for what they post that could cast the company in a bad light.
Leaving aside how vague this all is — what is a ‘bad light’ defined as? — what about the basic premises of constitutionally protected freedoms of free speech? If individuals can be coerced from taking controversial stands by conservative employers, aren’t we ceding control of political discourse to business interests?
The First Amendment is a check only on the government, that the government will take no action to prohibit free speech. But this doesn’t extend to other employers, and as a result, employers often act as if they can fire an employee for any sort of public stance, online or in public.
In some states — California, New York, and Washington DC — there are laws barring discrimination based on political activities or affiliations. Colorado and North Dakota go further, prohibiting discrimination based on ‘lawful conduct outside of work.’ Some cities have similar rules (Seattle, Lansing MI and Madison WI).
It’s maddening that we do not have similar national laws protecting our freedoms.
Anyway, Hyman does continue with his screed, expressing his surprise that the National Labor Relations Board supports the National Labor Relations Act (NLRA):
Amazingly, however, the NLRB might take issue with such a policy.
In his latest missive on workplace social media policies, NLRB Acting General Counsel Lafe Solomon passed judgment on the following neutral provision in an employer’s social media policy:
Remember to communicate in a professional tone…. This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion.
Mr. Solomon concluded that such a policy, which merely reminds employees “to communicate in a professional tone,” unlawfully restricts employees’ rights to engage in protected concerted activity:
We found this rule unlawful…. [R]eminding employees to communicate in a “professional tone,” the overall thrust of this rule is to caution employees against online discussions that could become heated or controversial. Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion.
Hyman leaves out the most important part of this discussion, which is that the NLRA prohibits employers from ‘chilling’ the workplace in regard to protected ‘concerted activities’, specifically, discussions about workplace safety, conditions, and collective bargaining. So vague policy descriptions that employees should be ‘professional’ and to avoid saying things that ‘reflect badly’ on an employer are unenforceable, and firing employees who — for example — complain about unsafe working conditions is illegal.
Hyman then concludes with the most blatantly reactionary summing up imaginable:
What’s the real lesson here? Social media is an evolving communication tool. Employees have not yet figured out what it means to be “profersonal.” Employees need to realize that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination (even if employers can overreact in these situations). Until people fully understand that social media is erasing (has erased?) the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in a “profersonal” world, even at the risk of offending the NLRB’s prickly sensitivities.
Uh, no.
But it is my job, as a long-time observer of the social media jungle to offer some advice to employers out there, and employees too.
First, for employers:
- You shouldn’t fire employees who are expressing lawful opinions that you do not agree with, even if you can. And based on where you are sited, or where your employees work, maybe you can’t. It’s a rotten world if every Republican CEO can fire Democrat employees, and vice versa.
- The NLRA needs to be examined in detail, and you should tailor social media policy documents to specifically state what the NLRA does and does not allow you to do, as an employer, and what the rights of workers are. Vague exhortations about professionalism are likely to be no help in a NLRB issue.
For employees? Just remember the opening lines of Blood Simple, the Coen Brothers’ movie set in Texas: ‘I hear that over in Russia they got it all worked out where everyone pulls together. But what I know is Texas, and in Texas, you’re on your own.’ Here, in the US, companies can fire you for just about anything, unless you live in one of the states or cities that provide greater freedoms. Move to one of those places, or accept the precariousness of employment in a social media era.
Or, of course, we could campaign to create a real Freedom To Work Law that would make our First Amendment rights something more than civics mouthwash.
Source: ohioemployerlawblog.com
