Does criticizing an employer on Facebook count as a “protected” activity?

Did your dad ever sit you down and advise you never to put anything in writing that you wouldn’t want to see in The New York Times?

Well, the Times did indeed publish a few not-so-private thoughts of one careless worker’s Facebook page after she was fired for using the site as a virtual water cooler to criticize her supervisor. The reason this seemingly routine firing became newsworthy in the first place? The National Labor Relations Board believes the dismissal is a groundbreaking case, arguing that workers’ criticisms of their bosses or companies on social networking sites is a protected activity and that firing them for complaining is against the law.

The trouble began when Dawnmarie Souza, an emergency medical technician with the ambulance company American Medical Response of Connecticut, wanted a Teamsters representative’s help in preparing a response to a customer’s formal complaint against her. When her supervisor denied the request for assistance, she did what employees have done since the dawn of employment – complain about him to anyone who would listen.

The difference is that today’s Facebook is yesterday’s break room, and it’s a lot easier to deny you were in the break room. According to the company, in addition to using several vulgarities to ridicule him on her page, she wrote, “love how the company allows a 17 to become a supervisor.” (A “17” is the company code for a psychiatric patient.) American Medical Response of Connecticut fired Souza for violating employee policies against depicting the company “in any way” on Facebook or other social media sites and making “disparaging” or “discriminatory” comments when discussing the company.

The National Labor Relations Board has taken issue, with Lafe Solomon, the Board’s acting general counsel, telling the Times, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization. The labor board said the company’s Facebook rule was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves. The crux of the argument seems to be defining what’s protected and what’s not under a labor law that hasn’t evolved much since the 1980s. Marshall B. Babson should know; he was a member of the National Labor Relations Board in the 1980s and told the Times that such a broad rule where one cannot make disparaging comments about supervisors is clearly illegal under labor law. But, he also pointed out that an employee’s criticizing a company or supervisor on Facebook was not necessarily a protected activity, either.

Now, for those of you unsure of what precisely you have shared on Facebook, you might want to check out a new application called “I Shared What?!?” The application alerts you to the kinds of things that anyone can see on your Facebook page and allows you to change some privacy details, but not as many as you could if you’d just do a little research on Facebook’s own site and adjusted privacy settings from there.

In the meantime, for all you would-be boss disparagers, you might heed Dad’s advice and keep your scribblings out of the public eye. As for Souza, should she have been fired, or is everything fair game in the virtual break room?