Mid-Atlantic Health Law TOPICS

Being "Facebook Fired" describes the recent phenomenon of employees being terminated because of comments they have posted on social media sites.

The situations are as various as the workforce: a nurse terminated for posting information that violated patient privacy; a football team employee fired for criticizing a team's decision not to sign a player; a waitress fired for disparaging customers who left too small a tip; a contractor working with a city's jobs program being discharged for posting "tweets" referring to a city neighborhood as a "ghetto."

A. The NLRB Enters the Fray

On October 27, 2010, the Hartford Regional Office of the National Labor Relations Board (NLRB), the federal agency charged with administering the nation's labor relations laws, sent a chill down the spine of many employers when it filed an unfair labor practice (ULP) complaint against American Medical Response (AMR), a Connecticut company that provides ambulance services, for firing an employee who posted disparaging comments about her supervisor on Facebook.

The employee, Dawnmarie Souza, posted disparaging comments about her supervisor on her Facebook page, referring to him as a "scumbag" and a "17", the code the company uses to refer to psychiatric patients. Ms. Souza's coworkers joined in the discussion, and responded with their own comments about the supervisor.

The National Labor Relations Act (NLRA) protects the right of employees to engage in "concerted activity," which includes discussing the terms and conditions of their employment with other employees. This provision has been used to protect so-called "water cooler conversations" among employees.

Since the NLRA protects concerted activities by most non-supervisory employees, not just those represented by a union, the case could have significant implications for all U.S. employers.

In the AMR case, the ULP complaint alleged that the company's social media policy is overbroad, and that the policy, and Souza's termination, violate the NLRA. Among other things, AMR's policy prohibited employees "from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors." The policy also prohibited employees from "posting pictures of themselves . . . which depict the Company in any way," including depictions of the company's uniforms, logo or vehicles, without first obtaining permission.

B. Changing Tides

Less than a year before the filing of the AMR complaint, the NLRB's Office of the General Counsel issued an Advice Memorandum in which it opined that a similar social media policy issued by Sears did not violate the NLRA. The Sears policy proscribed a list of clearly unprotected activities such as explicit sexual references, obscenity or profanity and dissemination of confidential or proprietary information. The list of prohibited acts also included disparagement of the company's products, services, leadership and employees.

In that latter context, the NLRB's General Counsel found that the prohibition on disparaging comments could not reasonably be interpreted as impinging upon employees' NLRA rights. In reaching that conclusion, however, the General Counsel relied upon a case decided when Bush appointees controlled the NLRB. Wilma Liebman, a dissenting Board member in that earlier case, is now the Chairperson of the NLRB, and the Board is now controlled by Obama appointees who are expected to expand the scope of behavior that is entitled to NLRA protection.

It seems likely that the AMR case is only the tip of the iceberg. In another NLRB decision, Chairperson Liebman criticized the NLRB for not keeping up with the times, and called the Board the "Rip Van Winkle of administrative agencies."

Speaking about the AMR case, Lafe Solomon, President Obama's nominee to be the Board's General Counsel, told the New York 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." Solomon also noted that, while this is the first such complaint, he predicted "I have no doubt that we'll be seeing more."

C. Practical Implications

The NLRB is relatively unknown outside the world of unionized workplaces, but few of its actions have garnered more attention than the AMR complaint. Many national news outlets carried some report on the case, and legal discussion blogs have been ablaze with commentary and prognostication.

On February 7, 2011, the NLRB announced that the case settled, and AMR agreed to revise its social media policy to ensure that it does not prohibit employees from discussing their wages, hours or working conditions.

Since the settlement is not binding on anyone other than AMR, many questions remain open about employer restrictions on employee social media use. For example, what happens if the comment is posted on a site that is open to unrestricted public review, not just to the employee's co-workers or "friends"? What if the comments disparage a supervisor or the company about issues unconnected with working conditions or wages? Will it matter if other employees chime in on the discussion or not?

D. What Should Employers Do Now?

The AMR case is a reminder that most non-supervisory employees have NLRA rights, not just unionized employees, and all employers must be careful not to restrict employees' rights to engage in protected, concerted activity.

Employers should review their social media and electronic communications policies to ensure that restrictions on comments by employees about the workplace are not phrased in an overbroad manner. While the exact parameters of the type of on-line conduct that is protected under the NLRA may not be known for some time, broadly worded restrictions will be subject to attack.

Most importantly, employers should exercise caution before disciplining or terminating an employee who has posted comments about the employer, company policies, supervisors or other work conditions. Whether such conduct is protected will depend upon a variety of circumstances.

Regardless of whether the conduct is protected, however, it is also worthwhile to assess whether it will be beneficial to the employer to penalize the conduct at issue, since punishing an employee for making negative comments can sometimes give more prominence to the comments than they otherwise would have, and may create unexpected problems.