On a Saturday morning in October 2010, Mariana Cole-Rivera, a domestic violence advocate at the group Hispanics United of Buffalo, began the Facebook thread that would get her fired. She wrote, "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do you feel?"
Within minutes, HUB colleagues began posting supportive comments. "What the Hell," wrote one, "we don't have a life as is, What else can we do???"
"I think we should give our paychecks to our clients so they can 'pay' the rent," said another, "also we can take them to their Dr's appts, and served as translators (oh! We do that)."
By Tuesday, Cole-Rivera and four of the co-workers who'd responded to her had lost their jobs. Their boss said their Facebook thread violated HUB's harassment policy by disparaging a co-worker. The workers took their case to the National Labor Relations Board (NLRB), the federal agency charged with interpreting and enforcing U.S. labor law. A judge sided with them, but now the case is on appeal, and it's poised to help answer a question for the socially networked era: Which Facebook posts can get you fired? As more and more of our daily speech migrates online, business groups are hoping that the NLRB will make it easier for employers to control that speech. It shouldn't.
You might think the First Amendment decides the legal issue here, but it doesn't. The Constitution protects free speech from government interference. In the private sector, however, courts have made management discretion the rule. Employees who don't work for the government and aren't in a union can be fired or punished for almost anything they say, wherever they say it. Business groups say companies need the authority to put the best person in the job and to shuffle as they deem necessary.