Last week, we wrote about the National Labor Relations Board’s ruling that employees’ Facebook use constitutes free speech. The full legal consequences of that ruling have yet to be unpacked, but suffice it to say that the law is intersecting with 21st-century social media in unexpected ways.
This one may be even more strange. An employment lawyer named Margaret M. DiBianca claims that if bosses become friends with employees on Facebook and subsequently unfriend them, it could be construed as “evidence of retaliation,” opening the employers up to legal action.
DiBianca by way of AllFacebook:
“The law says you can’t retaliate against someone for legally doing what they’re legally entitled to do. If an employee complains about discrimination, you can’t fire that person for complaining,” she said. “The question is, what is retaliation? Over the years the standard has broadened. Now smaller actions can cumulatively turn into an adverse action.”
If you’ve ever felt a personal sense of rejection from getting deleted from someone’s friend list, then you might understand why DiBianca equates the practice with retaliation. Like her November 12 entry on the law firm’s blog states:
“The employee [who came to DiBianca’s firm alleging that a supervisor’s Facebook unfriending of her showed unlawful retaliation] felt that the “unfriending” was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context. Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint.”
A few caveats: DiBianca’s line of reasoning with respect to Facebook unfriendings hasn’t been tested in court, and as she acknowledges above, it’d be stronger as one of several points of evidence for retaliation rather than in isolation. The ruling to which she’s referring, Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, specifies that to qualify as retaliation, an employer’s actions must have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” On its own, it sounds like a stretch to say that Facebook unfriending fits the bill, but until a court decides on such a case, who knows? It’s only a matter of time …
(via AllFacebook)
