Facebook, freedom and thin-skinned bosses

By Bruce Barry, Special to CNN

November 11, 2010 -- Updated 1434 GMT (2234 HKT)

STORY HIGHLIGHTS

• Bruce Barry: Losing private-sector job over a Facebook remark doesn't violate freedom of speech
• Employers shouldn't view offhand remarks on Facebook as threats, he writes
• Barry: National Labor Relations Board says comments may be protected under labor law
• Workers shouldn't forfeit rights, he says, and thin-skinned bosses can scare away talent

Editor's note: Bruce Barry is professor of management and sociology at Vanderbilt University and author of "Speechless: The Erosion of Free Expression in the American Workplace" (Berrett-Koehler, 2007).

Nashville, Tennessee (CNN) -- The recent news item about a Connecticut worker fired for Facebook postings that annoyed her employer, like other accounts of employees sacked for private speech, was bound to draw a lot of attention. Americans hold First Amendment rights to free speech as a kind of sacrosanct birthright, and for many of us the idea that you can lose your job for expressing private thoughts away from work offends the core principle of freedom of expression.

In fact, though, firing a worker for off-the-job speech that unsettles an employer is pretty routine, and for the most part very legal. The First Amendment and the rest of the Bill of Rights protect us from infringements on our liberties by acts of government, not from the oppressive acts of nongovernmental actors such as private-sector employers.

Combine that with the labor law concept of "employment at will," which makes it possible to fire someone without due process for just about anything short of discrimination, and you are left with an American workplace where free expression has scarcely more moral credibility than employee theft. A particularly eye-catching example is an Alabama woman who lost her job -- with no legal recourse -- during the 2004 election season because her Republican boss didn't like the John Kerry bumper sticker on her car in the factory parking lot.

Widespread use by just about everyone of online networks and social media opens new opportunities for workers to engage in personal expressive activity that might arouse the notice and disapproval of one's employer, and by extension opportunities for touchy or paranoid employers to police and punish essentially harmless extracurricular speech.

So in a sense, the situation involving Dawnmarie Souza, the Connecticut emergency medical technician fired by an ambulance services firm for posting negative comments about her boss on Facebook, is just the latest skirmish in an ongoing conflict between employers' desire to keep workers in line and the rights of employees to live their private expressive lives without unwarranted employer interference.

Holding a job should not require giving up your right to an expressive private life.
--Bruce Barry

Fired for Facebook?

Dare to trash your boss on Facebook?

RELATED TOPICS

• Facebook Inc.
• First Amendment Rights
• U.S. National Labor Relations Board
• Labor Law

But there's a wrinkle that makes this case important: the involvement of the National Labor Relations Board (NLRB), which contends that Souza's Facebook comments could be protected activity under labor law. Americans don't enjoy general free speech protections against infringement by a private employer (with some limited exceptions, such as certain kinds of whistle-blowing). But federal labor law does grant union-eligible workers the right to engage in "concerted activity" for the purpose of "mutual aid or protection" -- essentially, to communicate with each other about working conditions and terms of employment. Those same federal laws bar employers from interfering with workers' efforts to improve their work situations.

If Souza had dissed her boss in, say, a blog post or a letter to the editor, her expressive act would likely earn no protection against her employer's wrath. But on Facebook her comments catalyzed responses from and interaction with some of her co-workers. That online "conversation" involving Souza and other employees of the same firm is what the NLRB alleges could amount to protected concerted activity. If the courts agree (at this point it's just a charge by the NLRB, with a hearing slated for early next year) then Souza's dismissal was illegal.

When this case does reach a courtroom, lawyers will tussle over the nature of social media sites. Does interaction within a closed Facebook circle of friends amount to private conversation, or are negative comments about one's job or boss on Facebook the equivalent of a public statement that could affect a firm's reputation? Does it matter how big one's network is? How many co-workers have to chime in to the conversation to make it "concerted" activity?

Until this works its way through the courts, employment lawyers are advising corporate clients to ensure that employee policies regarding internet use are not written so broadly that they chill workers' exercise of their associational rights under labor law.

Souza's situation turns more on labor law protections than on constitutional free-speech rights because she worked for a private-sector employer. The First Amendment does afford more protection to public-sector workers, but government employees reading this shouldn't get their hopes up. Federal court decisions along with developments in management practice have combined to make even the public-sector workplace rather inhospitable to employee free-speech claims.

Consider the cautionary tale of Ashley Payne, a Georgia public school teacher forced to resign last year when administrators learned in an anonymous email about pictures of her on Facebook holding an alcoholic beverage during a trip to Europe. According to the Atlanta Journal-Constitution, Payne kept her network settings private, and never friended any students. A year later, as her case crawls through the legal system and she awaits her day in court, Payne is still unable to find a teaching position.

A common reaction among working professionals to stories such as Souza's and Payne's is to advise people to manage their online presence and their digital footprints more carefully and prudently. Avoid giving your employer a reason to frown on your online expressive activity, goes the argument, even when you do it on your own time, on your own device, and on private networks. This is reasonable advice to the extent that it equates to "avoid being really stupid," but it's unfortunate advice if it counsels individuals to suppress their own private expressive life as a career strategy.

To be sure, employers need not tolerate any and all extracurricular speech by workers that might genuinely pose a legitimate threat to the firm's interests or to its workplace harmony. If I worked for CNN, with a spare-time hobby maintaining the web site timewarnerisevil.com, it certainly shouldn't behoove my employer to retain my services in the name of some abstract notion of off-work freedom of personal expression. Employers need not allow workplaces to become debating societies or free-for-alls for hostility and harassment.

But it's troublesome when employers favor a management culture so bent on predictability and control that even mild or tangential departures from expressive conformity are treated with suspicion and rebuke. Employees will kvetch about jobs and bosses until the day there no longer are jobs and bosses, and enlightened employers understand that new technological vehicles for said kvetching will inevitable emerge and evolve.

Holding a job should not require giving up your right to an expressive private life, even if you might be prone to the occasional untoward remark about the people who sign your paycheck. Cultivating a thin-skinned managerial impulse to treat workers' expressive activities as existential threats to the enterprise isn't how you manage a workforce; it's how you chase talent away to your competitors.

The opinions expressed in this commentary are solely those of Bruce Barry.

No Racistino

BY Daniel Timp


Every year representatives of Canterbury Park engage the wider community in an attempt to gain casino machines, claiming that it would benefit the state of Minnesota. The state of Minnesota has a long history of avoiding open support of all types of gambling. The federal government granted Indian tribes the right to build casinos; unable to fight it, a state lottery and charitable gaming in bars soon followed.

The last time Canterbury Park pushed hard for a racino was while the brothers Ghermezian were trying to get the state Legislature to grant them the right to put a casino in the Mall of America. However, the issue is more complicated than Jennifer Selvig implies in her guest column, which is why the push to gain a casino at the MOA was abandoned.

Gambling addiction is a serious problem that the state of Minnesota has been hesitant to promote. The treatment of racehorses is not humane in all cases. Canterbury Park is not about to disappear, they merely see the potential profit to be had by installing video poker and slot machines.

I lived in Portland, Oregon and I know what it is like to have video poker in every bar and Keno in every gas station. Is this where we want Minnesota to go? I don’t. Would granting Canterbury Park the right to have slots and video poker necessarily result in a landslide of gambling machines across the state? Not if we granted Canterbury Park a monopoly, I suppose, but that would be more hypocritical than the state lotto.

Daniel Timp

Source

-------

13 Comments
The Minnesota Daily wants to host a forum for discussion regarding issues and stories regarding the University of Minnesota and surrounding communities. However, the online comments should not be used to threaten or defame. This is a place for people to be heard, and want to contribute to discussion. Those who persist to use expletives, inappropriate, racist, defamatory or abusive postings risk losing the privilege to post.

To flag an inappropriate comment please login.
Sun, 04/19/2009 - 9:58pm — SMR (not verified)
Racinos a boon for Minnesota and the horse industry

U Student Daniel Timp submitted a commentary regarding Racinos. His perspective is limited to a tiny slice of not-so-recent history. Gambling bills before the Minnesota Legislature this year include video lottery terminals in bars and restaurants across Minnesota, a full casino at the Airport and a Racino bill proposed by the state's horsemen. Tim's assertion that the tracks just want to make money is short sighted and misses the big picture -- that's the one that effects farm owners and tax payers like myself.

The issue that should most concern the public is the massive amounts of money that metro casino operators are making without paying gaming taxes-- a benefit of sovereign immunity. That monopoly provides economic development opportunities outstate but generates great wealth to a very small population in the metro area. A little more than a decade ago, the billion dollar casinos that we all know now were simple bingo halls. Their expansion has been unchecked, unregulated and still provides no benefit to residents of Minnesota in the way of gaming revenue like the lottery and pari-mutuel racing do. Isn't it time for the state to benefit from people's enthusiastic participation in gaming? If the state approves alternatives to reservation casinos, the significant tax generated is voluntary and if your don't play, you don't pay!

The state must evaluate each gambling proposal on their respective merits and acknowledge that our society is a gaming society determined to play games as a form of entertainment (80% of Minnesotans claim to participate in some form of gambling as reflected in 2003 MPR/Pioneer Press and a 2003 Star Tribune Poll). The state cannot control compulsive gaming behavior anymore than the state could close all the bars to prevent alcoholism or close the malls to prevent compulsive shopping behaviors. Government cannot be the babysitter but legislation can require funds be set aside for responsible gaming programs should new gaming legislation be passed.

Unlke allowing slots in every bar, as many like Tim fear, the Racino legislation is modest in scale and big on benefits. The Racino initiative asks the state to allow the two horse racing tracks in the metro area to install the same casino games seen at existing casinos. The tracks are already highly regulated and overseen by the State Racing Commission. The tracks also employ thousands, and are the cornerstone for the racing industry in our state. The business of racing goes well beyond the racetracks. It is the business of hundreds of vets, farriers, hay and feed dealers, equipment vendors, farmers, shippers, trainers, grooms and others. And, don't forget, Racinos would generate $1/4 Billion in tax revenue every biennium -- that's a $1/4 Billion more than the existing casinos give back to our State!

* reply

Mon, 04/20/2009 - 8:32am — Writ Dye (not verified)
Jebus that was long!

EOM

* reply

Mon, 04/20/2009 - 9:09am — U grad and Scott County taxpayer (not verified)
That may have been long but

That may have been long but the writer addressed most of the relevant points in this debate.For all of the reasons expressed,I support the Racino concept.It also will eliminate hopefully the substantial amounts of money that the Tribes give to the DFL each year in hopes of preserving the state self imposed monopoly for the Tribes.Finally, it would eliminate the jobs of some of the 40 plus registered lobbyists at the state capitol who work for the Tribes.

* reply

Mon, 04/20/2009 - 8:34am — Randy, concerned tax payer in Prior Lake (not verified)
Racinos good for Minnesota

As a Minnesota tax payer, I think Racino legislation is a fair deal. First of all it would not be a Canterbury monopoly. There are two race tracks in Minnesota, owned by different companies I believe. I am sick and tired of seeing the Mystic Lake, Grand Casino and Treasure Island casino grow bigger and bigger and knowing that the state does not get any money from their gaming. Adding other gaming options, Racinos and the race tracks, would increase competition and break the casino cartels current monopoly!

I like to visit a casino and gamble from time to time. I don’t do it in Minnesota though; I drive south to Diamond Jo, 2 miles south into Iowa. Talking to the people there they say that most of their customers are Minnesotans - over ¾ of them. That is gaming dollars and tax revenue that could and should be staying in here in Minnesota.

I support this plan, give the state some revenue! Give the tribes some fair competition, competition builds better business.

I have contacted both my state representative and my state senator to voice my support of this and they both told me that the Racino bill has little chance because the tribes donate millions of dollars to the DFL party. They told me that the DFL leadership will stand in the way of this in fear of losing campaign contributions. In spite of the common sense benefits for the state in a time when they need Billions for the budget, they are looking past the taxpayers and thinking of their own pockets. That is wrong, this is not Illinois! We need to do something about these multi Billion dollar non taxed businesses in the state, we need to save the racing in the state and bolster Minnesota’s equine industry.

* reply

Tue, 04/21/2009 - 9:37am — Jim G (not verified)
Racino ...

Amen, I say to that !!! Adding poker machines at Canterbury would be a PLUS for the entire state !!! Our DFL compatriots (and the Indian casinos) are just yanking our chain !!! When are we, the common man, going to have some input as to our destiny ?? Pass the RACINO bill and BOOST the State's economy...

* reply

Fri, 04/24/2009 - 9:49pm — Anonymous (not verified)
racinos

If you ever wondered why the state legislators have never passed the gamming bill and you haven't figured it out by now, their all probably on the take under the table from the local tribes.Next election comes around we'll remind them by not voting for them and remind them how they became state legislators and state senators.

* reply

Mon, 04/20/2009 - 9:49am — Kelly - horse owner (not verified)
Racino bill

In a perfect world, no one would choose to gamble away their life savings, no one would drive drunk, no one would abuse tobacco or drugs. In a perfect world, there would be no unwanted horses. This is not a perfect world.
What Daniel fails to point out is the good that Racino legislation can bring. Setting aside 1% to non-racing horse industry apportions several million dollars to fund research, improved facilities and projects that can bring about a significant change to the horses of Minnesota. When does the good outweigh the bad? In this case it is pretty clear. Minnesota needs revenue and our horses need a boost to their health, well-being, value and very existence. I fully support this legislation being a horse owner and enthusiast (not in the racing community but the proud owner of horses "off the track".) who wants to see the lives of our horses and the support of our horse communities reap the benefit.

* reply

Mon, 04/20/2009 - 11:25am — Anonymous Student (not verified)
Racino Bill.

The Racino proposal that is currently being discussed is, as someone already mentioned, modest. It is a very limited way for the state benefit from essentially no investment. There are already two ideal facilities to add gambling in a way that would benefit the state and the citizens of Minnesota. The Racino proposal would add hundreds of millions of dollars and thousands of jobs; there is already concern about the record deficit and unemployment rates - why not address that concern?

Minnesotans who want to avoid tax hikes and a loss of public services as we face looming budget cuts should voice their concerns to their state legislators. The voice of the citizens is what can help this bill to pass and prevent legislators from lining their own pockets as the tribes owning Mystic Lake, Grand Casino, and more try to avoid future competition and keep the revenues to themselves.

* reply

Mon, 04/20/2009 - 1:23pm — Anonymous (not verified)
I think people need to

I think people need to educate themselves on all aspects before speaking about anything they don't know the ins and outs about. The state is facing a deficite and until you can find a better way to support the state then don't bash the efforts being put forth in an attempt to help everyone in MN.

I fully support the Racino. I am involved in the horse community here in MN...I do not gamble by choice but why not have some options instead of what we currently have? Why let the current casinos line the pockets of the representatives that are supposed to be working to better the state of MN and represent the demographic as a whole?

I have contacted my representatives and will continue to do so until a decision has been made.

* reply

Mon, 04/20/2009 - 2:13pm — Stephanie Valberg (not verified)
Racino

The new Racino proposal would serve an all important role of replenishing diminishing funds for equine research at the U of M by providing at least 1% of proceeds to support the horse community and equine research. University of Minnesota Equine Center in collaboration with the state’s racing industry has been working together for more than 15 years to improve the health, well being and performance of the horse by supporting equine research at the U of M. Unfortunately our current source of research funding from the Minnesota Racing Commission using funds committed from on track betting at Canterbury Park Racetrack has declined due to the slowing economy. This partnership with the Racing Commission has been vital for equine research investigating colic, genetics, lameness, muscle disease, nutrition, and reproduction. Since 2001, a combined investment by the U of M and Minnesota Racing Commission of $387,400, provided enough preliminary information to obtain an additional $3,000,000 in support from state, federal and private foundations for further cutting-edge equine research. The Equine Center, its researchers, and clinical staff have dedicated themselves toward maximizing the health and well-being of horses. It is my personal belief, that the Racino bill is extremely important to support our goal of applying scientific research toward the prevention, treatment, and cure of injuries and diseases that afflict horses.

Stephanie Valberg DVM PhD

Director of the University of Minnesota Equine Center

* reply

Mon, 04/20/2009 - 4:51pm — anonymous (not verified)
Voluntary tax could equal huge revenues for Minnesota!

In light of Minnesota's looming budget deficit how can our Legislature blatantly disregard a revenue source that could contribute one-quarter of a billion dollars to the State per biennium? I've met with our elected Legislators and heard them say "it's only $250,000,000.00". I'm wondering if they truly listened to their constituents who took the time to share their concerns at the Town Hall meetings and Legislative Road Shows held throughout Minnesota? I was there. I heard parents pleading that their disabled child's medical benefits not be cut. These meeting rooms were filled with people who were passionately sharing their stories, their concerns and their needs. I would like to hear these same Legislators tell their constituents, the individuals marking the ballot come election time, that "it's only $250,000,000.00". I'm sure there are many programs and services that could be saved with even a small portion of that $250,000,00.00.

Gambling at a racino would be a voluntary tax. If you want to gamble, you contribute. Gambling's not your thing? No problem, you aren't being forced to contribute. Quite unlike an increase in property taxes or other increases that don't give you an option of paying or not. People in Minnesota gamble. Whether it's at tribal casinos, on the internet or across our state borders. A racino would simply give people another choice - contribute to Minnesota or contribute to the tribes, our neighboring states or some anonymous entity on the internet.

Racinos will save an industry; allow owners, breeder and trainers to continue supporting Minnesota's agricultural economy; create and maintain jobs; and create $250,000,000.00 in revenue for the State of Minnesota.

Yes it is "only $250,000,000.00", but it's the only moderate proposal out there that is offering our Legislature any help in balancing the budget. If you have a better idea, that can accomplish all of the things the racino proposal can, I'd love to hear it!

* reply

Tue, 04/21/2009 - 9:27am — Ron Oliver (not verified)
best option out there

I think Mr. Timp is missing the point. Yes gambling addiction is a serious problem, but the addition of slots at Canterbury and Running Aces would do little to add to the problem. They already offer several types of gaming as it is. On top of that there are already well over a dozen casinos operating in the state. the real issue is money, the state needs it the tracks are willing to give it. The tribal casinos in the state generate billions of dollars in revenue each year, almost all of it is untaxed. The tracks however would generate hundreds of millions of dollars in tax revenue which would help provide funding for services that are in danger of being cut. Add to that the thousands of jobs that Racino would provide and the money that those jobs add to the economy and the additional tax revenue that spending generates is an additional benefit. Heck the tracks are willing to build casinos and give up hundreds of millions of dollars and they are not asking the state for a dime of assistance unlike our beloved Vikings and Twins. If anyone out there has a better idea lets hear it!

* reply

Tue, 04/21/2009 - 3:24pm — Democrat (not verified)
DON'T KID YOURSELF

Racino is a no- brainer! The Indian casinos attract thousands of people everyday, just look at their parking lots...filled with 150K dollar RV's. Does anybody really think that if that camper decides to take in a day at the races, enjoy the outdoors at Canterbury and possibly slip $10.00 into a slot machine inbetween races that the Indians are going to lose business? Come on. We are supposed to be an educated state.

Yep, I'm a 'horse person', but even non horse people have to recognize the relief that the taxable money generated will provide. Infra structure, education, keep open the state parks, JOBS. It goes on and on.

I would love to have our Gov. call two or three of the existing Racino state Governors and ask them how they balanced their budget and how much the Racino contributes to them!

Heck, any legislator, senator and the Gov. would be a flippin HERO if they passed this. Which would probably create local support for anyother 'races" they may be planning on running for!

Peak oil proponents have wager for CERA

USA: With its annual CERAWeek conference fast approaching, energy adviser Cambridge Energy Research Associates (CERA) has received a challenge, a US$100,000 bet that the think tank's June 2007 prediction on world oil capacity is wrong. CERA's opponents is ASPO-USA, a group dedicated to promoting peak oil theory, the idea that over half the world's supply of oil has been used, and is now on decline. ASPO-USA members who have put up money include former BP Chief Petroleum Engineer Jeremy Gilbert, economist Herman Franssen, and energy banker Matt Simmons.

By Matthew Donovan
Filed from Houston

In June 2007, CERA predicted that world oil production capacity will reach 112 million b/d by 2017. This figure indicates 107 million b/d of actual production, compared with today's 87 million barrels. Steve Andrews, USPO-USA co-founder, disputes this figure. "That's a vision in search of reality. Anything is possible on paper, but we are betting you can't do that with the drill bit," said Andrews. USPO-USA members called CERA's prediction "misguided, overly optimistic, and out of touch" and pointed out problems with previous CERA projections. Member Bob Kanner said, "We're not just betting our money, we're betting our nation's future."

ASPO-USA has provided a $100,000 letter of credit, and calls on CERA to match the money. The individuals who donated the US$100,000 have agreed to donate any winnings to an energy-focused non-profit group if production in 2017 does not exceed 107 million b/d. The group has also request a "civil dialogue on peak oil" which CERA has previously called for, but declined ASPO-USA invitations for such a debate. Co-founder Jim Baldauf stated, "If the CERA seers really believe their crystal balls, they should call our bet."

source: http://www.energycurrent.com/index.php?id=4&storyid=8698