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:
Employees shall have the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities... |
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.