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Posted on 11.12.2010

The Facebook Firing – What happened to ‘three strikes, you’re out?’

This very tweeted story still has me scratching my head. An employee with an ambulance service in Connecticut receives two performance-related complaints within 10 days.  One complaint is from a customer (a patient); the other is from a referrer (a hospital employee).  Neither are good – for either the employee or the employer.  We’ll call these complaints “strike one” and “strike two.” The employee’s supervisor asks the employee to prepare a written report of the incidents. The employee then chooses to make several disparaging remarks (including descriptive profanities) about the supervisor on Facebook.  The employee seems to forget or chooses to disregard that the ambulance service has a written policy quoted by ABC news as saying "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superior, co-workers and/or competitors."  So let’s call the employee’s decision to make the posts “strike three.” Can you guess what comes next?  Correct.  The employee is fired. To any supervisor, executive or business owner, it seems perfectly appropriate to show the door to an employee who publicly defames their employer and co-workers.  The employer is providing a regular paycheck, and likely, certain other employment benefits in exchange for 1) hard work and 2) not calling your boss a four-letter-word on the Internet. Three strikes?  You’re out. Not so fast, coach.  In this case, the employee is a member of a bargaining unit.  She and her union, the Teamsters Local 443, filed a complaint with National Labor Relations Board, which has since taken up the matter and filed an official complaint against the ambulance service. “Criticizing your supervisor with other employees, that’s protected under the statute and that’s basically what she was doing,” said an NLRB attorney. “The only difference, she was doing it on her own Facebook page, on her own time. She had a right to do that. She wasn’t using the company’s computer on company time.” Keep in mind, the employee had the lowest possible security settings on her Facebook page.  So effectively, the whole world – or at least all Facebook users in all countries, which the site says now totals 500 million – could view her post. The NLRB argues that a worker’s criticism of his or her employer (an individual or organization) on a social networking site is a “protected activity” under the National Labor Relations Act. Therefore, an employer who punishes an employee for such criticism is violating federal law. I am not an attorney, and I am certain that myriad other details color this story.  While I firmly believe in every person’s right to free speech, I also believe in an employer’s right to fire an someone for cause … and strikes one, two and three sure feel like cause to me. The NLRB will hear the case in January.  Until then, what do you think?

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