Social Media Case May Provide Guidance for Employers

March 2, 2011

The National Labor Relations Board (NLRB) is championing the cause of the employee who allegedly lost her job because of online postings on a social media Web site. The National Labor Relations Board ("NLRB") filed a complaint against ambulance company American Medical Response ("AMR") alleging that AMR's termination of an employee who posted negative remarks about her boss on her Facebook page violated the National Labor Relations Act. In its Complaint, the NLRB also alleged that AMR's blogging and Internet policy was overly broad and thus unlawful.

It appears to be the first case of its kind to proceed this far. Before it could go to trial, the case was settled. The NLRB issued a press release announcing its settlement with AMR and stated...the company agreed to revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions....

Facts of the case: American Medical Response (AMR) is a firm providing emergency response and dispatch services. A medical technician for the firm in Connecticut was asked by her supervisor to prepare an investigative report after a customer complained about her.

After the supervisor asked for the report, the employee requested and was denied representation from her union, according to the NLRB.

Later, from a home computer, the employee bad-mouthed her supervisor on her Facebook page.

Specifically, the technician posted the following from her home computer: "...Looks like I'm getting some time off. Love how the company allows a 17 to become a supervisor." In the firm's terminology, a "17" refers to a psychiatric patient. There were also other negative remarks about the supervisor.

The remarks drew supportive comments from co-workers.

The technician was suspended and ultimately fired. The NLRB issued a complaint against AMR. It alleged that the firm engaged in unfair labor practices by firing the employee for making the online comments. The NLRB also asserted that the firm's policy concerning Internet postings was vague and overly broad.

According to the NLRB, the employee's Facebook postings constituted "protected concerted activity" under the National Labor Relations Act. Specifically, the NLRB stated the company's blogging and Internet posting policy in its handbook contained these unlawful provisions:

    * Prohibiting employees "from making disparaging remarks when discussing the company or supervisors." An NLRB spokesperson characterized this section of AMR's handbook as being vague and conflicting with fundamental labor laws that generally permit employees to criticize supervisors and discuss employment-related matters with co-workers.
    * Prohibiting employees "from depicting the company in any way over the Internet without company permission."

The company claimed that the technician's termination from employment wasn't due to her online postings. Instead, its attorney pointed to two complaints about the technician made by patients and hospital staff that the firm was investigating. The technician had requested for a union representative to be present during an investigatory review, but the request was denied. It was at this point, according to the NLRB, that the technician posted the derogatory comments online.

The attorney for AMR maintained that the main reason the technician was terminated was her "rude and unprofessional conduct" evidenced by the two complaints. Otherwise, the attorney says it is very unlikely that she would have been fired.

Employers should take note of this settlement as it provides some guidance regarding social media policies and how they must be drafted to withstand the NLRB's scrutiny. After American Medical Response, it is at least clear that employers may not muzzle employees, either in the office or on social media, as "free speech" is alive and well in the workplace.

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