Employment Law Update

What’s All the Commotion About?

“Dooced” ¹, “Twerminated”, “Facebook Fired.” These terms all describe the recent phenomenon of employers terminating employees because of comments the employees posted on social media sites. One recent study found that of companies with 1,000 or more employees, 20% have disciplined employees and 7% have terminated employees for such behavior. The situations are as various as the workforce: a nurse terminated for posting information that violated patient privacy; a NFL team employee fired for criticizing the team’s decision to forgo resigning a player; a waitress fired for disparaging customers who she felt left too small a tip; a contractor working with a city’s jobs program discharged for posting “tweets” in which he referred to a city neighborhood as “ghetto.”
The NLRB Joins the Discussion
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, Inc. (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, was being investigated by the company because of customer complaints about her behavior. Souza sought, but was denied, union representation during an investigatory meeting. She later posted disparaging comments about her supervisor on her Facebook page, referring to him as 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. The new chairperson of the NLRB wants to extend the concerted activity protection to social media discussions, which may involve an employee’s non-work related friends, relatives and even the general public. Because the NLRA protects concerted activities by all covered employees, not just those represented by a union, the outcome of this issue could have significant implications for all U.S. employers.
In the AMR case, the ULP complaint alleges 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 prohibits 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 prohibits 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.

Changing Tides In Washington Will Likely Affect the Outcome

Less than a year ago, 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 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 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, now 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, the Board’s Acting 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.”

What Are the Practical Implications Of the AMR Case?

The NLRB is relatively unknown outside the world of unionized workplaces, and few of its actions have garnered more attention than the AMR complaint. Many national news outlets have carried some report on the case, and legal discussion blogs are ablaze with commentary and prognostication. It is important to remember, however, that the AMR complaint is only a charge, not a decision. A hearing before an administrative law judge in the AMR case is scheduled for January 25, 2011 and it will likely be several months after that before a decision is issued. Unless a settlement of the ULP complaint occurs, the administrative law judge’s decision will be reviewed by NLRB board members and any Board decision could then, in turn, be subject to review by the Court of Appeals for the Second Circuit and, potentially, the Supreme Court.
Any decision in the AMR case may leave many open questions about employer restrictions on employee social media use. For example, Ms. Souza’s Facebook comments drew response from fellow employees and a discussion ensued. The NLRB states on its own Facebook page that “Generally, ‘protected concerted activity’ is group activity that seeks to change wages or working conditions.” What happens if other employees do not participate in the discussion, or if the comment is posted on a site that is open to unrestricted public review, not just the employee’s “friends”? What if the comments disparage a supervisor or the company about issues unconnected to working conditions or wages? Does it matter if other employees chime in on such a discussion? Even if the discussion is unrelated to the workplace, what will be the result if the employer policy used as a basis for discipline is overbroad on its face? Regardless of how the AMR case is resolved, this is an area of law that is likely to be evolving for many years to come.
What Should Employers Do Now?

The ULP complaint in the AMR case is a reminder that all 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 sometimes can give more prominence to the comments than they otherwise would have and may create unexpected problems.
Employers who want advice in drafting social media and/or electronic communications policies, who would like their current policies reviewed, or who have other questions concerning these issues should contact Chuck Bacharach at 410-576-4169 or Bob Kellner at 410-576-4239.
¹ The term “dooced” refers to the firing of Heather Armstrong, a graphic designer terminated for posting negative comments about her workplace and coworkers on her blog. Armstrong’s friends called her "Dooce" because she made frequent, sometimes purposeful, misspellings on her blog – for instance, typing "doode" to emphasize the "oo" in dude.