Contrasting Cases: Two People Fired Due to 'Net Postings

[Madeline]

Case Number One:

WASHINGTON -- A Connecticut woman who was fired after she posted disparaging remarks about her boss on Facebook has prompted a first-of-its-kind legal case by federal authorities who say her comments are protected speech under labor laws.

The National Labor Relations Board alleges that American Medical Response of Connecticut Inc. illegally fired Dawnmarie Souza from her job as an emergency medical technician late last year after she criticized her supervisor on her personal Facebook page and then traded Facebook messages about the negative comments with other employees.

The complaint, filed Oct. 27 by the board's Hartford, Conn., regional office, could set a precedent for employers to heed as more workers use social networking sites to share details about their jobs.

"It's the same as talking at the water cooler," said Lafe Solomon, the board's acting general counsel. "The point is that employees have protection under the law to talk to each other about conditions at work."

Feds rule against employer in firing woman over critical Facebook remarks | cleveland.com

Case Number Two:

Andrew Shirvell has been fired from his job as a Michigan assistant state attorney general, his attorney said this afternoon.

Shirvell was fired for using state resources for his campaign against University of Michigan student body President Chris Armstrong and for lying to investigators during his disciplinary hearing, Attorney General Mike Cox said in a statement.

Shirvell was called before the attorney general’s staff at 1:30 p.m. today, said Philip Thomas, Shirvell’s attorney.

“The only reason they gave was the fact that they felt his actions had made it impossible for him to continue in his role,” Thomas said.

Shirvell has been under fire for weeks for comments he made about Armstrong, who is openly gay. Shirvell has shown up at public events to condemn Armstrong’s “radical homosexual agenda.”

In a written statement, Cox said Shirvell was fired for "conduct unbecoming a state employee, especially that of an assistant attorney general."

"To be clear, I refuse to fire anyone for exercising their First Amendment rights, regardless of how popular or unpopular their positions might be," Cox said in the statement. "However, Mr. Shirvell repeatedly violated office policies, engaged in borderline stalking behavior, and inappropriately used state resources, our investigation showed.

Andrew Shirvell fired from job at Michigan Attorney General's Office - AnnArbor.com

The two cases are not totally comparable as the Shirvell twit engaged in conduct that amounts to theft of services from his employer as well as lied to investigators. However, as best we can, let's use them to discuss:

Just how much control can your employer legally exert over your online speech from home?

 

[Madeline]

^Bump^

I find it hard to believe no one has a POV on employer-controlled private speech on the 'net by employers.

 

[Ringel05]

Both are justified however in the last one I think the employer left themselves open for a possible defamation case. I would have not even mentioned the "borderline stalking", considering it was a "political" race the two were supposedly engaged in stalking might be hard to prove. But then again, I'm not a lawyer so it's simple opinion based on what I do know.

 

[Madeline]

Both are justified however in the last one I think the employer left themselves open for a possible defamation case. I would have not even mentioned the "borderline stalking", considering it was a "political" race the two were supposedly engaged in stalking might be hard to prove. But then again, I'm not a lawyer so it's simple opinion based on what I do know.

Not only is Mike Cox a lawyer, he is the Chief Lawyer for Michigan. He may well have a duty to prosecute Shirvell; he would certainly have a duty to cooperate in any criminal investigation of Shirvell's conduct.

But setting aside, Shirvell's criminal liability for stalking, if we contrast the two cases merely for speech and its content (and place -- on the 'net), seems to me employers who fire for internet postings are in hot water. I'd say restrictions on speech extracted from employees or would-be employees in exchange for work are also toast.

Do you agree?

 

[Ringel05]

But setting aside, Shirvell's criminal liability for stalking, if we contrast the two cases merely for speech and its content (and place -- on the 'net), seems to me employers who fire for internet postings are in hot water. I'd say restrictions on speech extracted from employees or would-be employees in exchange for work are also toast.

Do you agree?[/FONT][/SIZE][/COLOR]

The issue was the first one was fired wrongly because of personal time speech (hopefully) while not on the job. When doing it on the job in an unofficial venue then the employee becomes liable, at least that's my understanding of how the rules are to be utilized.
As for employer required restrictions of free speech while on the job, while I'd like to see that go bye,bye I doubt it will.

 

[Madeline]

But setting aside, Shirvell's criminal liability for stalking, if we contrast the two cases merely for speech and its content (and place -- on the 'net), seems to me employers who fire for internet postings are in hot water. I'd say restrictions on speech extracted from employees or would-be employees in exchange for work are also toast.

Do you agree?

The issue was the first one was fired wrongly because of personal time speech (hopefully) while not on the job. When doing it on the job in an unofficial venue then the employee becomes liable, at least that's my understanding of how the rules are to be utilized.
As for employer required restrictions of free speech while on the job, while I'd like to see that go bye,bye I doubt it will.

I agree, an employer can control an employee's 'net speech whilst that employee is at work -- assuming the employee is using the employer's pc and ISP to write such speech. I would think bans on personal use of employer property are pretty typical for employers of all sorts, and that employees are no more free to fritter away employer-paid time on the 'net than they would be to fritter it away painting their nails.

I dun know all that much about labor law, but the article suggests that "water cooler talk" about working conditions and supervisors is protected. If this is true, then it only makes sense that speech of this sort on the 'net would be protected as well -- except for this:

If I chat up my coworkers at the water cooler about how much I hate my boss, my only listeners are the people I'm speaking with. But if I post negative comments about my employer on the 'net, my audience is all of Planet Earth (potentially). I suppose it is possible the employer could assert a right to be free of employer criticism on the 'net for this reason, but I rather doubt that'll fly.

The interesting thing about the Shirvell case is, his offensive speech was not about his employer but an unrelated, third party private citizen. I think Mike Cox was correct in emphasizing he did not fire Shirvell for exercising his free speech rights but for apparent theft of services, lying to investigators and apparent criminal cyber-stalking and RL stalking.

In short, if Shirvell had confined himself to online activities at home, I'm not sure his boss could have acted against him (legally) -- though of course, an employee can sometimes be fired just on a whim, for no reason at all.

It'll be interesting to see if Shirvell sues for wrongful termination.

 

[editec]

YOu have consitutional right on the streets and in public places.

You have NO consitutional rights on the job.

Your employer is under no obligation to grant you the right to free speech, free association, the right to bear arms, the right to ANYTHING you might think is your right due to being a citizen of this nation.

Hey, learn to accept that fact.

Corporations are more important and much more powerful than citizens.

Money= FREE SPEECH, remember?.

You are worth only as much money as you have.

What you want is only as important as your ability to get it, and hold onto it.

THIS is the society we want, obviously.

If it isn't, why do we keep electing people who see to it that the above is the way things are?

Get it?

The only truly FREE people in this world are criminals that haven't been caught. And most of them are slaves to thye tyranny of their fellow anarchists, so they too are hardly free.

Civilized people are tools to be used and dismissed when no longer useful.

 

[Madeline]

That's a tad jaded, editec. Yes, we have lost some rights and others have been eroded, but I bet Americans are still the freest people on Planet Earth.

Kinda early to be parading around a sign that says "The End Is Nigh", donca think?

 

[Middleman]

I believe both people were vulnerable to firing. The EMT should have kept her whining to the PM and IM feature of Facebook. It kind of depends on how private she had her settings on her wall, actually. If she had them ultra private, then the boss would have only found out if one of her FB friends had gone to him. Facebook can be a much more public setting than merely backbiting the boss at the water cooler. And, some bosses don't allow negative gossip to occur in their workplace, or negative things to be said about them outside of work.

The other fellow, it sounds like, inappropriately used company resources for a campaign. He should have played by the book since he had enemies because of his opinions and stances. Bad move on his part.

 

[Madeline]

I believe both people were vulnerable to firing. The EMT should have kept her whining to the PM and IM feature of Facebook. It kind of depends on how private she had her settings on her wall, actually. If she had them ultra private, then the boss would have only found out if one of her FB friends had gone to him. Facebook can be a much more public setting than merely backbiting the boss at the water cooler. And, some bosses don't allow negative gossip to occur in their workplace, or negative things to be said about them outside of work.

The other fellow, it sounds like, inappropriately used company resources for a campaign. He should have played by the book since he had enemies because of his opinions and stances. Bad move on his part.

Sounds as if the feds are taking the position that labor laws prohibit restrictions on an employee's free time free speech (presumably except for trade secrets, etc.) You think they are wrong, Middleman?

This case will be fun to keep track of, methinks. I bet many people are affected at work by their facebook postings.

 

[Middleman]

I think that an employer, who pays your living, has a right to not be trashed on the internet. That should be reserved for private conversations, and your FB wall is not generally totally private. Mine is set so that only my friends can view it, but my friends' friends can see a posting if their friend comments on something I said. So, I'm careful and never say anything politically sensitive, or negative about the corporation for which I work. Speaking of work, I need to go there now, have a good day.

 

[Ringel05]

YOu have consitutional right on the streets and in public places.

You have NO consitutional rights on the job.

Your employer is under no obligation to grant you the right to free speech, free association, the right to bear arms, the right to ANYTHING you might think is your right due to being a citizen of this nation.

Hey, learn to accept that fact.

Corporations are more important and much more powerful than citizens.

Money= FREE SPEECH, remember?.

You are worth only as much money as you have.

What you want is only as important as your ability to get it, and hold onto it.

THIS is the society we want, obviously.

If it isn't, why do we keep electing people who see to it that the above is the way things are?

Get it?

The only truly FREE people in this world are criminals that haven't been caught. And most of them are slaves to thye tyranny of their fellow anarchists, so they too are hardly free.

Civilized people are tools to be used and dismissed when no longer useful.

Unfortunately it's not the employer per se as much as it is the litigate society we live in. The employer is legally liable for your actions and speech while on the clock and in some jobs on a 24/7 basis. Blame our greedy selves, the equally greedy lawyers and "progressive" judges who over the years in many cases have managed to pervert (in my humble but accurate opinion) the application of speech and actions of individuals in the work place.
Don't get me wrong, there are a limited number of these actions and speech that should be and are placed at the feet of the employer but not to the degree that as currently been reached.

 

[Skull Pilot]

I have clear policy guidelines in my employee handbook regarding social network posts. No employee is allowed to mention a customer or else they're canned.

And if my employees badmouth me I'll find another reason to shit can them but have no doubt they will be shit canned

 

[dilloduck]

I have clear policy guidelines in my employee handbook regarding social network posts. No employee is allowed to mention a customer or else they're canned.

And if my employees badmouth me I'll find another reason to shit can them but have no doubt they will be shit canned

Bingo---they are so many legal ways to shit can an employee that it's silly to use what they said on facebook as the cause. Giving them impossible tasks works well.

 

[jillian]

YOu have consitutional right on the streets and in public places.

You have NO consitutional rights on the job.

Your employer is under no obligation to grant you the right to free speech, free association, the right to bear arms, the right to ANYTHING you might think is your right due to being a citizen of this nation.

Hey, learn to accept that fact.

Corporations are more important and much more powerful than citizens.

Money= FREE SPEECH, remember?.

You are worth only as much money as you have.

What you want is only as important as your ability to get it, and hold onto it.

THIS is the society we want, obviously.

If it isn't, why do we keep electing people who see to it that the above is the way things are?

Get it?

The only truly FREE people in this world are criminals that haven't been caught. And most of them are slaves to thye tyranny of their fellow anarchists, so they too are hardly free.

Civilized people are tools to be used and dismissed when no longer useful.

Unfortunately it's not the employer per se as much as it is the litigate society we live in. The employer is legally liable for your actions and speech while on the clock and in some jobs on a 24/7 basis. Blame our greedy selves, the equally greedy lawyers and "progressive" judges who over the years in many cases have managed to pervert (in my humble but accurate opinion) the application of speech and actions of individuals in the work place.
Don't get me wrong, there are a limited number of these actions and speech that should be and are placed at the feet of the employer but not to the degree that as currently been reached.

i'm not sure how respondeat superior, which is what you mean when you say that employers are responsible for our actions, has to do with "greed". When you are acting in your capacity as an employee, you represent your employer for good or bad. I don't know of any job that extends to 24/7, but that doesn't mean there aren't any.

As for your conclusion, I'm not sure what you mean or how justice is somehow "perverted".

But to get to the point of the thread, I am not familiar with labor law protections of speech, so I don't know if the "speech" in question in the first case is protected by statute. As to case two, it seems there is illegality or may be and certainly that is a basis for firing.

Under Federal Law, absent an employment contract, its my understanding that you can be fired for any reason or no reason at all, so long as you are not fired for an illegal reason.

 

[Madeline]

YOu have consitutional right on the streets and in public places.

You have NO consitutional rights on the job.

Your employer is under no obligation to grant you the right to free speech, free association, the right to bear arms, the right to ANYTHING you might think is your right due to being a citizen of this nation.

Hey, learn to accept that fact.

Corporations are more important and much more powerful than citizens.

Money= FREE SPEECH, remember?.

You are worth only as much money as you have.

What you want is only as important as your ability to get it, and hold onto it.

THIS is the society we want, obviously.

If it isn't, why do we keep electing people who see to it that the above is the way things are?

Get it?

The only truly FREE people in this world are criminals that haven't been caught. And most of them are slaves to thye tyranny of their fellow anarchists, so they too are hardly free.

Civilized people are tools to be used and dismissed when no longer useful.

Unfortunately it's not the employer per se as much as it is the litigate society we live in. The employer is legally liable for your actions and speech while on the clock and in some jobs on a 24/7 basis. Blame our greedy selves, the equally greedy lawyers and "progressive" judges who over the years in many cases have managed to pervert (in my humble but accurate opinion) the application of speech and actions of individuals in the work place.
Don't get me wrong, there are a limited number of these actions and speech that should be and are placed at the feet of the employer but not to the degree that as currently been reached.

What is this about, Ringel? The law of respondeat superior (an employer's vicarious liability for acts of employee acting within the scope of his duties) has been pretty stable, from where I sit.

Has someone successfully sued a business over facebook postings made on an employee's private page?

 

[Madeline]

I have clear policy guidelines in my employee handbook regarding social network posts. No employee is allowed to mention a customer or else they're canned.

And if my employees badmouth me I'll find another reason to shit can them but have no doubt they will be shit canned

Do you compel your employees to friend you or your business on facebook, Skull Pilot?

 

[Skull Pilot]

I have clear policy guidelines in my employee handbook regarding social network posts. No employee is allowed to mention a customer or else they're canned.

And if my employees badmouth me I'll find another reason to shit can them but have no doubt they will be shit canned

Do you compel your employees to friend you or your business on facebook, Skull Pilot?

No but i have my ways. I have internet spies that are friends with my employees. I personally do not do facebook

 

[Ringel05]

YOu have consitutional right on the streets and in public places.

You have NO consitutional rights on the job.

Your employer is under no obligation to grant you the right to free speech, free association, the right to bear arms, the right to ANYTHING you might think is your right due to being a citizen of this nation.

Hey, learn to accept that fact.

Corporations are more important and much more powerful than citizens.

Money= FREE SPEECH, remember?.

You are worth only as much money as you have.

What you want is only as important as your ability to get it, and hold onto it.

THIS is the society we want, obviously.

If it isn't, why do we keep electing people who see to it that the above is the way things are?

Get it?

The only truly FREE people in this world are criminals that haven't been caught. And most of them are slaves to thye tyranny of their fellow anarchists, so they too are hardly free.

Civilized people are tools to be used and dismissed when no longer useful.

Unfortunately it's not the employer per se as much as it is the litigate society we live in. The employer is legally liable for your actions and speech while on the clock and in some jobs on a 24/7 basis. Blame our greedy selves, the equally greedy lawyers and "progressive" judges who over the years in many cases have managed to pervert (in my humble but accurate opinion) the application of speech and actions of individuals in the work place.
Don't get me wrong, there are a limited number of these actions and speech that should be and are placed at the feet of the employer but not to the degree that as currently been reached.

What is this about, Ringel? The law of respondeat superior (an employer's vicarious liability for acts of employee acting within the scope of his duties) has been pretty stable, from where I sit.

Has someone successfully sued a business over facebook postings made on an employee's private page?

That's not what I'm addressing. I was responding to his generalized post with a generalized response. Think outside the OP.

 

[Madeline]

I have clear policy guidelines in my employee handbook regarding social network posts. No employee is allowed to mention a customer or else they're canned.

And if my employees badmouth me I'll find another reason to shit can them but have no doubt they will be shit canned

Do you compel your employees to friend you or your business on facebook, Skull Pilot?

No but i have my ways. I have internet spies that are friends with my employees. I personally do not do facebook

I wonder if part of the problem lies right there, legally. What right does an employer have to spy on his employee's net activity conducted in their private lives? Such conduct by a neighbor or stranger might could be criminal....(if extreme and then only if the law continues to develop as it has).

I also wonder what harm could flow from a net posting that is set up as private by the employee to such a degree that it took spying to get at it? If it concerned a customer of the employer's, how on earth could that customer ever come to hear of it?

This is without a doubt a kinetic area of law and technology. I'm fairly certain there are now services you can buy to gather whatever has been written about you or your business anywhere on the 'net. Dunno if such services guarantee they can retrieve privately set postings or not.