Skip lawsuits; try using common sense
"The problem with common sense is that it isn't very common."
I've always appreciated that quote, perhaps never more so than when the discussion ventures down the land mine-laden road of social media. Forget what the law says; forgo what your employee handbook says, or what your best friend who is in his second year of law school tells you over a couple beers at the local watering hole. When it comes to Facebook and the like, can't we all just use a little common sense? If the glut of lawsuits and legal challenges to employees' participation on various social media platforms is any indication, the answer is a resounding no!
Take the water-cooler case of the moment — employees of Hispanics United of Buffalo who were terminated because of some questionable Facebook posts about their job at the nonprofit. The case itself is not new, but word that controversy over President Obama's nominees to the National Labor Relations Board could void a series of legally binding decisions — including a ruling in favor of the terminated employees — has it back in the spotlight.
Without regurgitating the tired tale — one that is far from unique, at least when it comes to employees gabbing online about everything from working conditions to customers and coworkers — here is the gist of what went down:
• In 2010, Mariana Cole-Rivera, an employee of Hispanics United of Buffalo, took to Facebook to vent about her job, posting this gem: "Lydia Cruz, a coworker, feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do u feel?"
• Several coworkers responded to the post, piling on with their frustrations aimed, at least in part, at the coworker who was named in the initial post.
• You can guess what happened next: The boss finds out, the employees are fired and they do what Americans do — seek a legal remedy for their collective poor judgment.
Ultimately, the NLRB ruled in favor of the employees, saying their posts amounted to protected speech. While all that is up in the air, given the uncertainty of the Obama appointees who were part of the NLRB that issued the decision in the case, what intrigues me is a far more basic question.
I'll leave the political and legal wrangling to people who wear suits that cost more than my car, but to me this boils down to widespread refusal on the part of the American masses to simply use some common sense, good judgment and, as my mother used to say, to think before they speak.
All too often we hear people blathering on about their "rights" — "I have the right to say this." "I've got the right to do that."
What they never stop to consider is the fact that because you have the right to do something in no way means it is a good idea.
I may have the right to stand in my kitchen juggling my set of Showtime steak knives, but does that mean it is a good idea? Moreover, when I inevitably misjudge the ceiling fan and toss a few into the blades, leading to one being impaled in my temple, who do I sue? The company that made the fan? The company that made the steak knife? My parents who made me? Or no one, because I was just exercising my "rights."
But I digress. Back to Hispanics United.
Perhaps it is your right to say what you want about your job on Facebook. Perhaps it is akin to a water-cooler session among coworkers, albeit with a 21st century twist. It may be legal, but it doesn't mean it isn't shortsighted and unprofessional. According to various media accounts, the postings in question included profanity, horrendous grammar and what could certainly be perceived as negative claims about the employer. If I were the boss, I would want to fire the employees as much for their collective butchering of the English language as for the tone and context of what they said. Case in point is one of the posts in response to Cole-Rivera's initial Facebook rant: "Tell her to come do mt ... job n c if I don't do enough, this is just dum."
Here's a thought: If you are going to accuse someone of saying something dumb, at least spell the word correctly.
Again, I'll leave the legal wrangling over the fired employees to someone else to figure out, but to me, they should have been disciplined for bringing their employer and a specific employee into the conversation. Additionally, there are certain traits one typically looks for in a prospective employee. Punctuality is important. A good work ethic helps and a solid resume can be a swing factor. But how about professionalism? How about having employees who know how to conduct themselves in (and out of) the workplace? From Facebook to Twitter, from Skype to iChat, the 9-to-5 job is a thing of the past. For better or worse, the lines between on-the-clock and off-the-clock have been irrevocably blurred, and this case is just one in a thousand examples where the blurring of those lines can create problems.
At the end of the day, the final legal ruling will be what it will be and it will speak for itself. But for my money, this case says a lot more about the dumbing down of America and the utter lack of self-awareness of our citizens than it does about any rights or freedoms we have in cyberspace or the workplace. It also stands to have potentially long-term consequences for every small-business owner who has to deal with disgruntled employees using social media as a (protected) sounding board to torpedo their bosses' business one tweet at a time.
Matt Chandler: [email protected]; Twitter @LawJournalMatt