With the economy being down for so long, Anne Jinah found herself unemployed for about six months. Throughout that time, she was actively using Facebook, Twitter and every other online resource she could find to network better and improve her chances of getting back in the mainstream. It was through those efforts that two weeks ago, Anne landed a job at Acme as clerical assistant to Les Zizmore, the maintenance manager. Anne was more physically attractive than most, a factor that might have played a part in the warm reception she received during the three pre-employment interviews.
She was thankful for having a regular paycheck again. The downside, however, was that the job paid about 25% less than what she earned at her last job and she considered her new duties to be far beneath her true abilities. This was a source of frustration, but beggars can’t be too choosers these days.
When she got home after work the second day on the job, Anne updated the journal on her Facebook page. The logical topic for someone who had been out of work so long was the new job. In a two-sentence posting, she wrote that it was incredibly dull and that her main duty so far was to enter data into some obsolete DOS-based software program.
A few days later, she posted another comment, this time she wrote that now she gets to file papers and print half a dozen copies of the next day’s maintenance schedule. She finished this entry with the comment, “I’m totally bored.” She didn’t wish to dignify Acme with even a mention, so never revealed her employer’s identity.
The following week, Les was sitting in his office killing time online researching his new assistant, examining her photographs with great interest and learning everything he could about her. He delved into her literary postings and found her commentaries about the job at Acme. He called her into his office for an immediate explanation.
“I don’t like your Facebook postings,” Les said, “and I don’t want Acme showing up in the news like that.”
“I’m happy working at Acme,” Anne protested, “and my Facebook pages are about me, not you, not Acme. Besides, I never mentioned Acme’s name on any of my pages.”
“It doesn’t matter,” Les replied. “Other people on the outside know you — I saw how many Facebook friends you have — and where you work. Acme doesn’t need this sort of notoriety.”
“The comments don’t mean anything,” she argued. “It was simply a throw-away comment I wrote just to get something posted. It’s a nothing. Do we have to discuss this on company time?”
“As far as I’m concerned,” Les replied, “it shows disrespect for Acme and dissatisfaction with your job. It’s impossible for there to be any goodwill between us now. Your continued employment here is out of the question. You’re fired, as of right now.”
How could this situation have been avoided? Was this a case of prying or stalking? What happened to Anne’s First Amendment rights? Should there be limits on how social networking is used at a place of business?
A plant engineer says:
This situation could have been avoided if Les Zizmore would listen to people on the plant floor, at the grocery store, church, home, and just about anywhere employed people gather. Many, if not most, people complain to others about their job. It’s drilled into us from every angle. The weekend is praised and Monday is considered a “dark day” by many because they have to go to work. Complaining about one’s job, boss, or duties at work are a normal thing in America.
Prying or stalking aren’t issues in my opinion. If someone doesn’t want people to know something about them, they shouldn’t post it on the Internet. Anne should be reinstated and Les should be coached by someone in the company who can explain free speech to him and that complaining about one’s job isn’t a crime, punishable by dismissal, but is an opportunity for management — Les in this case — to explore the talents that people bring to the workplace and allow them to use those talents to help the company achieve its goals.
Jeffrey L. Strasser
An academician says:
Anne is toast, as they say, and doesn’t have much recourse. She does have the First Amendment right of free speech to say just about anything she wants to say about Acme. And Acme probably can’t sue her for saying whatever she wants to say about them — that’s what the First Amendment guarantees. But that doesn’t mean that Acme can’t fire her. Assuming Acme is in an “at will” state, it can fire her for most any reason it likes. Actually, it doesn’t have to have a reason.
Therein is the distinction that many people fail to appreciate. Anne can say most anything she wants about Acme without being sued or arrested for it. And Acme can fire her if it wants for whatever reason it wants or even if it doesn’t have a reason. That’s why Anne is toast, in spite of her First Amendment rights.
How could this have been avoided? First, if Acme is sensitive to what is said about it, then that should have been explained during company orientation for new employees. There are companies that are very blunt and tell employees that nothing about work or the company is to be shared with anyone outside the company (and some inside the company), unless it’s of a general and neutral nature. Where does this leave social networking? Well, employees can use social networking all they want, to anyone they want, usually on their own time, not company time - but not about the company. Was Les prying when he discovered her opinions about Acme? Not if it was a public site. Actually, some companies purposely pry, and check on employees’s Facebook sites to see what (or who) is posted. And if it thinks that the posting reflects negatively onabout the company, then the employee joins Anne in the unemployment line.
Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
An attorney says:
Anne’s poor judgment cost her a job, but it’s hard to fault Acme for this one. Given the country’s high unemployment rate, why would Acme want to retain a disgruntled, dissatisfied clerical worker when there are probably 20 other qualified applicants who would love to have the position?
In our current zealousness to give the entire world access to our most personal feelings via various avenues on the Internet, we need to be mindful that anyone can read anything posted on the Web. Needless to say, employers are quite sensitive about their employees’ public comments about them. If Anne chose to share her opinions about her new job with the entire universe, she assumed the risk that someone at Acme in a position that mattered might read it.
As to Anne’s First Amendment rights, the First Amendment applies to government action, not the action of individuals. Just as you have the right to eject someone from your home who insults you, Acme had the right to rid itself of a negative disgruntled employee who was placing the company in a bad light. Anne would have done well to abide by this old nursery rhyme:
A wise old owl sat in an oak,
The more he heard, the less he spoke.
The less he spoke, the more he heard.
Why aren’t we all like that wise old bird?
Julie Badel, partner
Epstein Becker & Green, P.C.