UnderCover Waitress: Facebook and Federal Law: You May Be Protected

Tuesday, August 6, 2013

Facebook and Federal Law: You May Be Protected

The First Amendment restricts the government's ability to stop citizen speech. We are (supposedly) free to assemble in public, free to speak, and free to make peaceful protests. Unfortunately, many Americans misinterpret "freedom of speech" to mean they can say whatever they want, whenever they want, to whomever they want. This is not the case.

Please remember that right & wrong do NOT always correlate with legal & illegal. Take the Jim Crowe laws, for example. Blacks can not eat in this restaurant? Sounds wrong to me. But at the time, it was legal because it was what the law stated.

In, "Work and Facebook Do Not Mix," I defended a private employer's right to require employees to not discuss work issues via social media outlets such as Facebook not because I think employers should rule our every waking moment, but rather, because I knew that the First Amendment does not restrict a private employer from doing so.

The National Labor Relations Board (NLRB,) bless their souls, are taking a stand on behalf of employee speech. In, "Federal Labor Law Picks Up Where The First Amendment Leaves Off," I discuss the five employees of Hispanics United of Buffalo who were fired for discussing work on Facebook. They sued and won, not because of the First Amendment, but because the National Labor Relations Act (NLRA) protects employees who wish to discuss work outside of work hours and off of work premises.

This is good news for labor advocates. However, it is not a free pass to slander your employer or your customers.

The terminated employees of Hispanics United of Buffalo prevailed because their Facebook speech served specific purposes. They were attempting to help each other defend against an accusation of laziness. They were expressing their concerns and their frustrations. They were offering each other mutual aid.

They were not slandering nor sabotaging their employer's business. They were not attempting to harass, bully, or intimidate.

The NLRB recognizes that social media is the new "water cooler" for employees. The conversation had by the five ex-employees above would have taken place at a local restaurant, bar, or park in the days before everybody jumped on the internet. The NLRB is attempting to apply old laws to new technology and new lifestyles in order to protect the long-standing rights of those of us who labor for a living.

Viva la worker! :-) 


  1. Social media can, after all, be a double edged sword... more's the pity.

    1. At least employers can't get away with requiring people to turn over their passwords! That was almost surreal...


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