Category: Employment Law

When Private Facebook Posts Come Back to Haunt You

To paraphrase that post-“Black Album” Metallica song (and a pretty tired proverb at that) – be careful what you wish for ’cause you just might get it.  I came across this gem recently courtesy of Eric Meyer’s (of Dilworth Paxson, LLP) informative and humorous employment blog: http://www.theemployerhandbook.com/about_me.html

The National Labor Relations Board (NLRB) recently issued an Advice Memorandum (see link below) recommending dismissal of an employee’s claim that her employer violated the National Labor Relations Act’s (NLRA) protected “concerted activity” sections when the employer fired the employee for making disparaging comments about the employer on Facebook.

The employee, who worked for Skinsmart – a dermatology clinic – was on a private Facebook “group message” with several former and current Skinsmar employees.  During the course of the exchange, the employee said, among other things, that a supervisor should “back the freak off”, the employer is “full of shit” and (the killer) “FIRE ME…..Make my day.”  The next day, one of the employees who participated in the Facebook exchange, showed the comments to the employer (with friends like these….).  The employer wasn’t amused and summarily fired the Facebooking (now former) employee.  (Somewhere Monsieur Eastwood is smiling.)  The employee, apparently having a change of heart, then lodged an unfair labor practice charge with the NLRB.

In recommending dismissal of the employee’s claim, the NLRB found that the employee’s inflammatory comments were akin to “griping” and were not protected group activity.  The NLRA specifically protects employees’ rights to organize and engage in concerted activity – so long as the activity involves shared concerns about working conditions or where the activity takes place in the context of preparing for group action or bringing group complaints to management’s attention.  Meyers Industries, 281 NLRB 882 (1986), NLRA §§ 7, 8(a)(1).  Here, the NLRB ruled that the employee’s request that her employer “fire her” and “make my day” was nothing more than unprotected individual griping and simply “reflected [the employee’s] personal contempt for her [employer].”  See Advice Memorandum, p. 3.

The take-away: First – be careful what you post on Facebook: you never know who is watching or who may “share” your impulsive (or not) posts; Second – if you are going to participate in a group message with current and/or former employees, your comments will only be protected if they truly involve working conditions or truly group complaints to be expressed to management; and Third – if you’re going to trash your employer, do it off-line.

Reference:

http://www.employerlaborrelations.com/files/2013/05/Tasker-Healthcare-Group-dba-Skinsmart-Dermatology.pdf

Facebooking at Work: A Federal Offense? (With ‘Aarons Law’ Update)

Can surfing the Net on company time get you fired?  Perhaps.  Can it subject you to Federal criminal and civil penalties?  Not yet.  At least not in the  Tampa, Florida area.  Wendy Lee v. PMSI, 2011 WL 1742028 (M.D.Fla. 2011) illustrates a creative attempt to expand the reach of the Computer Fraud and Abuse Act (CFAA)(which, incidentally, will be the subject of some future posts).  The CFAA, codified at 18 U.S.C. s. 1030, is a criminal statute with a civil component. It provides a private civil cause of action for anyone who sustains damage or loss as a result of an unauthorized user hacking into a computer system who then destroys, erases or transfers computer data.  It also prohibits authorized users from accessing protected information and from exceeding the limits of their authorization.  In this latter context, the CFAA is typically used by an employer when a rogue employee or “insider” accesses private employer computer data and sends the data to a competitor.

In PMSI, the Plaintiff filed a Federal pregnancy discrimination suit against her employer.  The employer fired back with a counterclaim based on the CFAA – saying that the Plaintiff spent her workdays surfing the Internet and playing on Facebook.  So egregious was the Plaintiff’s personal computer use, that the employer asserted a CFAA violation claiming the Plaintiff violated her employer’s published computer/Internet use policy.

The Court dismissed the CFAA count and said that while Facebooking at work may be a fireable offense; it does not subject one to Federal criminal or civil liability.  The court gave a narrow reading to the CFAA and held that the statute did not apply to a private employee’s violation of an employer’s internet policy.  Otherwise, the court said, every employee across the land who used a company computer to send and receive personal e-mails or who surfed the Net for non-work reasons could potentially be subject to Federal liability.

So, for now, Tampa area office workers can safely surf the net on company time without being subject to CFAA liability.   Whether the same workers can be fired for violating an employer computer policy, is an issue for another day and perhaps another post.

Update (7.15.13):  Recently, some proposed changes to CFAA were introduced by Zoe Lofgren and Ron Wyden, democratic congressman and senator from California and Oregon, respectively.  These changes, known as “Aarons” law (named for the late internet activist Aaron Schwartz), are designed to narrow the reach of the CFAA so that the statute is only used to prosecute outside hackers, rather than criminalize every-day violations of private employer computer policies or Internet terms of use.  Some helpful links follow.

http://www.wired.com/opinion/2013/06/aarons-law-is-finally-here/

http://www.lofgren.house.gov/images/stories/pdf/aarons%20law%20summary%20-%20lofgren%20-%20061913.pdf