On October 27, 2010, the National Labor Relations Board (NLRB) filed a complaint against a Connecticut company, American Medical Response of Connecticut, Inc. (AMR), alleging that the ambulance service company illegally fired an employee who posted negative remarks about her supervisor on her personal Facebook page. The case is groundbreaking in that it marks the first time the NLRB has stepped in to argue that workers’ criticism of their supervisor or employer on social media sites amounts to protected activity.
The case involves Dawnmarie Souza, who was asked by her supervisor to prepare a response to a customer complaint about her work. Her supervisor declined to allow her union representative to assist in preparing her response. Later that day from her home computer, Ms. Souza mocked her supervisor using multiple vulgarities and writing, “love how the company allows a 17 to become a supervisor.” 17 was AMR’s lingo for a psychiatric patient. The negative remarks drew supportive responses from her co-workers which prompted Ms. Souza to continue making disparaging comments about the supervisor. Ms. Souza was suspended and later terminated for her Facebook postings because the postings violated the company’s internet policy.
An NLRB investigation found that Ms. Souza’s Facebook postings constituted protected concerted activity and that the company’s blogging and Internet policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and depicting the company in any way over the Internet without company permission. A hearing has been scheduled for January 25, 2011.
It should be underscored that the case is still in the complaint stage and the NLRB has not made a formal decision yet. If and when a ruling is made we will advice you of the ruling. Although no final ruling has been made, the recent complaint by the NLRB highlights two issues of which employers need to be aware.
First, whether unionized or not, all employees are protected against unfair labor practices through Section 7 of the National Labor Relations Act (NLRA). Specifically, Section 7 provides that employees may not be discriminated against for participating in concerted activities concerning their wages, hours and other terms and conditions of employment. In the case involving AMR, the NLRB is asserting that Ms. Souza and her co-workers were engaging in protected concerted activity when she posted criticisms of her supervisor on Facebook, sparking a dialogue with co-workers.
Second, the complaint sends a cautionary message to employers to not make their social media policies too restrictive. Employers should review their social media policies to ensure that they are not susceptible to claims that the policy deters employees from their right to discuss wages, hours and working conditions.
However, employees do not have a free license to criticize their employers on social media websites. For example, if an employee lashes out in a post against a supervisor but is not communicating with his/her co-workers, that type of conduct might not be protected. Similarly, if the employee posts statements that are defamatory and not supported by facts, the activity may not be protected.
If you would like assistance in reviewing your social media policy to mitigate your risk of unfair labor practice charges, please contact any member of the employment law group.