United States: Settlement Reached in Case Involving NLRB’s Complaint Against Employer For Discharging Employee for Negative Facebook Posts

In what could have been a potentially ground-breaking case, the National Labor Relations Board ("NLRB") accused a company of illegally terminating an employee for posting negative comments about her supervisor on Facebook, a social media website. On October 27, 2010, the NLRB's Hartford, Connecticut office brought an unfair labor practices complaint against American Medical Response of Connecticut ("AMR") after it terminated one of its medical technicians, Dawnmarie Souza, for posting derogatory remarks about one of her supervisors on her personal Facebook page. The NLRB's Acting Region 34 Director alleged that Ms. Souza's Facebook comments were protected speech under federal labor laws. AMR denied the NLRB's allegations and claimed Ms. Souza was terminated on other grounds.

Although AMR and the NLRB recently reached a settlement in this matter, the significance of this case should not be overlooked. As the use of social media as a method to communicate with one another continues to rise, so does the likelihood that employees will turn to social media to air grievances about their work environments. Accordingly, it is important that employers understand the circumstances which led the NLRB to pursue a case against AMR so that they do not unwittingly find themselves in a similar predicament.

The controversy arose when AMR, an ambulance service, asked Ms. Souza to prepare an investigative report after the company received several complaints from patients about Ms. Souza's work. Ms. Souza requested assistance from her union, Teamsters Local 443, in completing the report, but her supervisor denied her request. The supervisor also allegedly threatened Ms. Souza with discipline because of her request for union representation. Later that day, after leaving work, Ms. Souza logged on to her personal Facebook page and posted disparaging remarks about her supervisor. In response, some of Ms. Souza's coworkers posted negative comments about the supervisor on the same page. The company terminated Ms. Souza three weeks later, and the NLRB alleges that AMR did so because Ms. Souza violated AMR's Internet policy. AMR, however, claims it terminated Ms. Souza because it had received several complaints from patients about her behavior.

Section 7 of the NLRA prohibits employers from interfering with employees' attempts to work together to improve working conditions, such as wages and benefits. It provides, in relevant part:

29 U.S.C. § 157. Section 8 of the NLRA further provides that "[i]t shall be an unlawful labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. §158(a)(1). The NLRA protects the associational rights of both union and non-union employees. Employees have the right to engage in concerted activities (i.e. activities by individual employees in pursuit of a common goal) regardless whether union activity is present or collective bargaining is contemplated by the employees. Employees do not, however, have unlimited discretion in choosing how to voice their complaints. For employees' concerted activity to be protected, it must take a reasonable form; the NLRA does not protect activity that is "unduly and disproportionately disruptive."

In this case, the NLRB investigated Ms. Souza's termination, and determined that Ms. Souza's Facebook postings about her supervisor constituted "protected concerted activity" under Section 7 of the NLRA. Specifically, the NLRB found that AMR maintained and enforced an overly restrictive Internet policy because it prohibited employees from making disparaging remarks about the company or its supervisors and precluded employees from depicting the company online without company approval. The NLRB views such an Internet policy as overly restrictive because employees would generally be protected under the NLRA if they engaged in the same sort of behavior on their own time in any public forum. The NLRB's complaint was set for a hearing before an Administrative Law Judge on January 25, 2011, but it was postponed because of settlement discussions between the parties.

On February 7, 2011, the parties reached a settlement. According to the NLRB press release, 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. The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee's discharged were resolved through a separate, private agreement between the employee and the company.

This is not the first time the NLRB has considered whether an employer's social media policy interferes with employees' rights under Section 7 of the NLRA. Just over a year ago, the NLRB's Office of General Counsel issued an Advice Memorandum in which it analyzed the social media policy of Sears Holdings. The social media policy prohibited employees from, among other things, using social media to disparage "a company's or competitor's products, services, executive leadership, employees, strategy, and business prospects" or discuss the company's confidential and proprietary information. The Office of General Counsel concluded that the policy was acceptable because it did not have a chilling effect on concerted activity—a reasonable employee would not believe the policy limited conduct protected by Section 7 of the NLRA.

Even though the parties reached a settlement, the recent complaint brought by the NLRB against AMR should serve as a warning for every employer, regardless of union status. Employers must be aware of the protections the NLRA provides to employees for engaging in protected concerted activity when deciding whether to take disciplinary action against an employee. Employers should also take the time to review their Internet and social media policies to ensure that they are not overly restrictive and do not have a chilling effect on Section 7 protected activity. Although employers should maintain policies that address unduly and disruptive behavior, such policies must be carefully drafted so as to avoid violating the NLRA.