By JOHN BUNDOCK
In an article featured in The New York Times, titled “Even If It Enrages Your Boss, Social Net Speech Is Protected,” was inaccurate in its portrayal of employment dynamics in numerous regards; while social networking speech is protected to the extent of the expression of ideas and criticism, the violation or undermining of company contracts out of sheer crassness or cruelty is not a right.
Speech and privacy rights are not absolute. It is well-know, for example, that shouting “Fire!” in a crowded theatre is illegal. There are plenty of things that enrage “Your Boss” and there is (hopefully) an overlap between his rage and that of a federal judge.
The conflict between the right to water-cooler complaints and the right of employers to conduct useful business involves a fundamental misunderstanding of where rights begin and end between the Constitution and the social contract. Speech rights are not absolute, but neither is the power of companies to limit what their employees say and do.
“We’re used to criminal law rights that don’t extend to employers,” said Robert J. Hume, an associate professor of political science at Fordham University who specializes in constitutional law, public administration and the judicial process. “People have fewer rights in the context of relationship[s] with employers [differing from]relationship[s] with the state… [for example], we have the 4th Amendment to [protect us from] unreasonable search and seizures so police officers can’t search us without cause.
However, in workplace environment, employers have freer hands to conduct searches so long as they relate to ‘special needs’ related to employment so long as it (searches) isn’t given over law enforcement,” Hume said. “The conflict arises over social media where they (employers) think, ‘special needs’ doctrine applies to speech.”
Speech need not fall under this doctrine of “special needs,” but can be prosecuted when it translates to conspiracy and/or actions that are clear rights violations, as was the recent case of the “cannibal cop.”
The National Labor Relations Board (NLRB) recently stated that workers have a right to discuss work conditions freely and without fear of retribution, and this is a just idea in so far as the previous social media policies of many companies have proven incredibly broad and arbitrary; “don’t discuss company matter publicly do not disparage managers, coworkers, or the company itself” were among such limitations.
“Justices are much more protective of speech rights, where [as] there is a freer hand (for rights restrictions) in regards to drug tests [say]…if you’re a customs officer,” Hume said. The NLRB decision reflects a protection of speech “if there’s no logical link between rights restrictions and needs of employment.”
Such restrictions have proven incredibly problematic as they forbid honest and constructive criticism, creating an intellectually-stifling atmosphere where it is better to keep your head down and say nothing rather than provide better ideas. Indeed, the specific case where the NLRB favored the employees involved a social worker.
Mariana Cole-Rivera requests responses from coworkers after another caseworker for Hispanics United stated she was going to complain to management about employees not working hard enough. The responses involved anger and expletives at times, but were feedback from other workers that could at least be understood as productive, not simple harassment as Hispanics United contended in its firing of Cole-Rivera and four other caseworkers for the posts.
When a single worker is just ranting online, or posting clearly offensive speech, as a police reporter for The Arizona Daily Star did, however, the NLRB finds such dismissals legal. A similar decision was reached over a bartender’s insulting patrons on Facebook; “concerted activity” aimed at improving wages or working conditions is protected, whereas ignorant venting is not.
Whereas employees must be wisely specific in what they say online, companies ought to also design social media policies that are more finely-tuned: Walmart (ironic considering its criticisms for anti-union policies) received high marks from the NLRB general counsel’s office for narrowing down its prohibitions to “inappropriate postings that may include discriminatory remarks, harassment, threats of violence or similar inappropriate or unlawful conduct.”
Looking at the specific ethics and utility of posts and management’s reaction, one can derive a better understanding of what constitutes reasoned discourse around the digital water-cooler, and what does not. Enraging management is alright, provided it serves the company to do so.
John Bundock, FCRH ’14, is a Middle East studies major from Pelham, NH.
