Lessons From the Facebook Firing

A settlement with the National Labor Relations Board in the high-profile “Facebook firing” case has turned conventional wisdom on corporate policies that govern employee use of the Internet and social media on its ear.

The language in those policies could now get employers in trouble with the NLRB. American Medical Response of Connecticut Inc. agreed to settle a complaint filed by the board's Hartford office after it fired Dawnmarie Souza for posting negative comments about a supervisor on her personal Facebook page.

Under the settlement, the company agreed to revise its “Blogging and Internet Posting Policy,” which the NLRB alleged improperly restricted employees' rights. The policy language at issue prohibited employees “from making disparaging, discriminatory, or defamatory comments when discussing the company or the employee's superiors, coworkers, and/or competitors.” The NLRB also alleged that Souza's firing violated federal labor law because she was engaged in protected activity when she posted the comments, and that Souza was illegally denied union representation during an investigation. AMR did not respond to a request for comment.

Under the settlement, the company also agreed to revise its rules to ensure that they don't improperly restrict employees from discussing their wages, hours, and working conditions with coworkers and others while not at work. It also agreed not to discipline or discharge employees for engaging in such discussions, and promised not to deny employee requests for union representation in the future or to threaten employees with discipline for such requests.

“The complaint against AMR was the Board's first shot across management's bow on this issue,” says Seth Borden, a partner in the law firm McKenna Long & Aldridge.

Labor law attorneys say employers should expect to see more cases like the one involving AMR. In fact, one NLRB official promised as much: “With the increase in the use of social media, we can anticipate more charges filed by employees and unions with respect to companies' Internet policies,” Lafe Solomon, NLRB acting general counsel, said in a statement following the settlement announcement. Federal labor law protects the rights of employees to discuss the terms and conditions of work with fellow employees, including on Facebook. “Employers cannot punish employees for taking part in such conversations, and they cannot prohibit such activity through overly broad rules in employee handbooks,” Solomon said.

In light of the board's aggressive stance, many employers are now reviewing the language of their policies, handbooks, and written manuals to make sure it can't be construed as limiting employees' rights under the NLRA.  And it's not just employers in union environments that have to worry. The National Labor Relations Act applies to all private employers in the United States. “All employers need to be concerned,” says Borden. “They should review all of their policies for any vague or overly broad language that could reasonably be read by employees to encompass protected activity,” he says.

Lawyers say that many employers have language in their existing policies that violates the Act and will need to be changed “A lot of employers don't a have clue what protected concerted activity is,” says Bennet Alsher, a partner with Ford & Harrison he says. Policies that state that employees can't discuss wages, hours, or working conditions with coworkers clearly violate the law, and many employers have that type of language in their handbooks.

“With the increase in the use of social media, we can anticipate more charges filed by employees and unions with respect to companies' Internet policies.”

—Lafe Solomon,

Acting General Counsel,

National Labor Relations Board

A broad policy that simply says employees can't talk about their employer on Facebook or other social media sites is also a problem, says Katrina Campbell, vice president of Corporate Training and Education at Global Compliance. Companies should ask themselves the same two questions the NLRB will ask if it looks at an employer's policy, says Alsher: “Is it valid on its face and is it being applied in discriminatory fashion?”

Companies that have not addressed the use of social media in their policies will want to add specific language as soon as possible. “Employers ought to have workplace policies that address the issues raised by social media, and set clear guidelines and parameters,” says Borden. “The fact that it may be difficult and challenging is not a defense if you find yourself facing liability.”

Although some may view the settlement as gutting employers' right to regulate employees' social media use, Jonathan Hyman, a partner with Kohrman Jackson & Krantz, disagrees. “Neither this case, nor any other case, will give employees carte blanche to trash their employers on Facebook, Twitter, in the press, or at a Saturday night cocktail party,” says Hyman. “Until the NLRB says otherwise, employers shouldn't treat social media any differently than any other form of employee communications.”

A Second Case

Some issues regarding the NLRB's views on social media policies remain unsettled.  Some say that the complaint against AMR didn't provide the clear guidance from the NLRB on its view of what is and isn't a valid social media policy. However, employers may soon get more guidance, if the board issues a complaint related to another charge. On Feb. 4, Service Employees International Union filed an unfair labor practice charge against Student Transportation Services of America, alleging that the bus company's policies on electronic communications and social media violate the NLRA.

AMR SETTLEMENT

Under the terms of the Settlement Agreement with the National Labor Relations Board, American Medical Response agreed to the following:

WE WILL revise the following rules that appear in our employee handbook, and advise

you in writing of such revision:

"Blogging and Internet Posting Policy", which improperly restricts your

right to engage in union activities or to discuss your wages, hours and

working conditions with your fellow employees and others;

"Standards of Conduct" rules, which improperly restrict your right to

engage in union activities or to discuss your wages, hours and working

conditions with your fellow employees and others; and

"Solicitation and Distribution Policy", which improperly restricts your right

to engage in union activities or to discuss your wages, hours and working

conditions with your fellow employees anywhere on company property

during working hours.

WE WILL remove from our records any documents that you signed requiring you to

abide by the above-described rules, and notify you in writing that this has been done

and that such documents will not be used against you in any way in the future.

Source: NLRB, American Medical Settlement Agreement.

The union's charge cites several portions of STSA's employee handbook, including a policy against the “use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers, or employees; or in a manner that might violate any other company policy.”

“The handbook, in our view, violates labor law with regard to protected activity in many ways, including an overly broad social media and electronic communications policy,” says Matt O'Connor, SEIU communications director. The Feb. 4 charge follows a related December unfair labor practice charge filed by SEIU that alleges that STSA employee Richard Duryea was disciplined for engaging in protected activity—having union-related conversations with his co-workers via posting personal comments on his personal Facebook page while off duty and at home, O'Connor says. He says that charges are still under investigation by the NLRB. Neither the NLRB nor STSA responded to requests for comment.

Meanwhile, Campbell warns that the NLRB isn't the only agency employers have to be concerned about. She expects more complaints of this kind from all the federal employment agencies, such as the Equal Employment Opportunity Commission and the Department of Labor, and possibly state agencies. “The message we're getting from the federal labor agencies and courts is that they're going to look at [employee communications on] social media sites the same way they look at discussions around the water cooler,” she says.