Opinion: Protected Speech vs. Protecting the Company

Paul Conley

When writing about human-resources issues, it’s often necessary to state the following: I’m not an attorney. It seems that the HR world has become so complex, so regulated and so litigious that it’s become difficult to offer an opinion without wondering what the lawyers will make of it.

Which brings us, of course, to the big news in the HR world this week: the National Labor Relations Board has issued a complaint against a company that fired a worker because of disparaging remarks she made on Facebook about her supervisor.

The case is more narrow than it may first appear. As the Harvard Business Review points out, the NLRB seems to be saying the worker’s comments were a "concerted action" — a federally protected form of speech tied to unionization efforts. No doubt lawyers on both sides will argue well and emphatically that writing mean things about your boss on Facebook is, or is not, a concerted action aimed at coworkers. And no doubt this will all drag on in the courts for quite some time.

But who cares? Not me. Like I said, I’m not a lawyer. I’m fascinated by this case, but not because of the legal implications. Rather, I’m intrigued by the ethical and moral implications of this situation.

Consider for a moment the numerous allegations in this case: the worker says she was denied union representation during an investigation; the company says the worker violated its Internet policy; the NLRB says the company’s policies and actions violate workers’ rights; everyone would agree that the comments posted on Facebook were unpleasant and mean-spirited.

So while the lawyers argue about what was and wasn’t legal, I’m left thinking about how much here was simply wrong.

Perhaps everyone at the company in question, American Medical Response of Connecticut, is a monster. If so, they deserve each other; May they spend eternity filing motions against each other in some courthouse in hell. But it’s far more likely that folks at AMR are like folks everywhere else … but that something in the company’s culture has gone monstrously wrong.

I’ve worked in places like that before — companies where the air had grown toxic, the bosses had grown defensive, and the workers had grown combative. Maybe you’ve worked in a place like that too. Perhaps you work in one now.

So what to do? What is the role of HR in promoting civility? What obligations does HR have to protect workers’ rights? What role should HR play in sheltering supervisors from cruel comments or saving employees from cruel bosses?

Earlier this week we ran a column by Ron Jones titled "HR as Custodian of Behavior." Jones wasn’t writing about the Facebook case. His column appeared before the NLRB ruling. Rather, he was writing specifically about how HR can address the transgressions of senior staff.

But the closing line of that piece has stuck with me as I’ve thought about the Facebook case and the people at American Medical Response of Connecticut. I don’t think Jones has all the answers any more than I do. But I do think he has the right question:

"HR has a responsibility to exhibit moral courage – to challenge and deal effectively with inappropriate behaviors irrespective of the perpetrator. If HR is not the custodian of values and behaviors – who is?"

You can read Jones’ entire column here.