Monday, November 3, 2008

Facebook and Work Do Not Mix, Part Deux

Facebook We were just discussing this issue on on the Marquette Law School Faculty Blog last week and I gave my two cents in the comments section to that post.

Now, another example from the real world of how Facebook and work are interacting more and more (via Sky News):

Virgin Atlantic has fired 13 cabin crew after they posted comments on Facebook, calling passengers "chavs" and suggesting the planes were full of cockroaches.The airline said the employees' behaviour was "totally inappropriate" and "brought the company into disrepute".

It launched disciplinary action last week amid a row over a group created on Facebook, which has now been removed, about planes flying from Gatwick.

Claims that the airline's jet engines were replaced four times in one year were made on the group's discussion board.

In a statement, the airline said: "Virgin Atlantic can confirm that 13 members of its cabin crew will be leaving the company after breaking staff policies due to totally inappropriate behaviour.

"Following a thorough investigation, it was found that all 13 staff participated in a discussion on the networking site Facebook, which brought the company into disrepute and insulted some of our passengers.

"It is impossible for these cabin crew members to uphold the high standards of customer service that Virgin Atlantic is renowned for if they hold these views." . . . .

A spokesman for the airline said: "There is a time and a place for Facebook.

"But there is no justification for it to be used as a sounding board for staff of any company to criticise the very passengers who ultimately pay their salaries.

First, I am going to figure out what "chavs" are.  But once I determine that, I pose to the readers of this blog the same question I posed to my employment discrimination law students last week: where do we draw the line between off-duty conduct that has no impact on employers and conduct which does?

Mike Selmi (George Wash.) argued at a faculty workshop at Marquette last weeks that we should have a bright-line rule - all conduct during work (including speech and privacy-related interests) can be regulated, and all off-duty conduct, like the type described above, is off limits.

Do Mike and others believe that the discharge of these FaceBook employees was wrong or somehow inappropriate?  For those who live in states with off-duty conduct statutes, would those statutes protect these type of activities? Should they if they don't?


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Professor Paul Secunda over at Workplace Prof Blog wrote an interesting Nov. 3, 2008 story entitled Facebook and Work Do Not Mix Part Deux. It is about employers firing employees for comments they may have made on Facebook. Paul questions [Read More]

Tracked on Nov 3, 2008 9:06:22 PM


Arbitrators deal with off-duty conduct questions all the time. Their touchstone is the concept of nexus --- that is, that the employer may discipline employees for off-duty conduct only with some showing of a connection between the conduct and the employer's legitimate interests.

The problem with Mike's bright-line test, as you describe it, is that it ignores off-duty conduct that may seriously harm an employer. One illustration I often used in class is a child care worker convicted of off-duty child abuse. No sensible rule of law would require the employer to retain such an employee. From an arbitrator's perspective, the risk of liability and the potential for loss of business would constitute nexus for discipline even though all the conduct occurred off-work and off-premises.

With the exception of protected concerted activity, the same would be true of an employee who hurts the employer's business through speech. Imagine an employee (acting alone, let us assume in order to avoid concerted activity issues) who publicly disparages the employer's product or services. An arbitrator would have no trouble finding just cause for discipline in such a case because the nexus is clear. Whether the disparagement occurs on Facebook or in a letter to the editor is immaterial.

Posted by: Dennis Nolan | Nov 3, 2008 8:40:30 AM

"Chav" is Brit-slang for white trash. As to the VI employees, it seems like a classic case of protected/concerted activity (under U.S. law). Clearly, publicly discussing one's workplace has a direct nexus to that workplace. To my mind, this is not an off-duty conduct question, such as whether the bar-room brawler should be fired from the plant, or whether the school teacher pictured in a bikini on her Facebook page should be fired. This is a question of the extent to which employees can publicly criticize their boss.

Regarding the criticism question, why shouldn't employees have a public forum to vent and complain about their working conditions? Such public griping has the effect of compelling employers to improve conditions, and that's a good thing, and more important than an employer's perceived reputation. Even complaining of the "chavs" broaches a complicated but important question of employers protecting employees from bad/boorish customers. (E.g., if women were complaining about male passengers who groped them, that would attack the customers, but this would encourage the employer to protect employees from groping. This speech should be protected.) In my view, the law should be highly tolerant of, and deferential toward, employee speech that complains about the workplace. The NLRA should protect this speech, with only but a few exceptions, such as when the speech is libelous under the "actual malice" standard.

Posted by: James A.W. Shaw | Nov 3, 2008 9:18:04 AM

The concept of a nexus to work has no application outside of just cause. The employees are probably going to be out of luck, except in those states such as New York that have a statute protecting off duty activity. However, there is a big exception for activity that may constitute a conflict of interest so comments that may disparage an employer may not be protected. We will have to wait and see.

Posted by: Mitchell Rubinstein | Nov 3, 2008 1:33:18 PM

Just wanted to offer a minor correction to the original post. While I do advocate a bright-line between on and off-work activity, I also acknowledge that employers may have a legitimate interest in off-work activity. My proposal is that, contrary to most jurisdictions today, an employer would have to justify any termination related to off-work activity, and do so by establishing that a substantial interest (not just any interest) was affected by the employer's activity. I would impose a heavy burden on the employer, but would recognize some legitimate interest in off-work acitvity, and from what has been described in the facebook incident, I would expect that Virgin Airlines could meet that standard.

Posted by: Mike Selmi | Nov 4, 2008 6:20:25 AM

Say two employees are communicating via FaceBook and they are using VERY offensive language to express their feelings about the company owners and others in the company. The communication is picked up by several folks outside the office ( who are not employed there). The two communicators are fired. Isn't that fair. It occured during business hours and some of the communication went thru and was capactured by the company server.

Posted by: t | Aug 27, 2009 10:34:51 AM

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