Earlier last year, the National Labor Relations Board filed a complaint against a company for firing an employee who criticized her supervisor on her personal Facebook page. The employee was terminated for violating of the company’s policy prohibiting employees from portraying the employer negatively or disparaging co-workers or supervisors on social media. The employee, an emergency medical technician, was allegedly denied her request to have a union representative help her prepare a report responding to a customer complaint about her work. At home, the employee subsequently posted on her Facebook page and referred to her boss as a “scumbag as usual” and as the company’s code for a psychiatric patient. As reported by the New York Times, “this is the first case in which the labor board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.”
The Board announced this week that it settled the lawsuit with the employer, American Medical Response of Connecticut, providing that 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, and that they would not discipline or discharge employees from engaging in such discussions.” The Board also announced in its press release that 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.”
Although this is the first case, it is unlikely to be the last case of its kind regarding employee use of social media. So what are employers to do? Employees cannot be disciplined for engaging in protected activity. However, not all employee criticism of a company or supervisor on Facebook or other social media is protected activity. Employers may want to review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would dissuade employees from exercising their rights to discuss wages, working conditions and unionization. Is the policy overbroad or unduly restrictive? Because this area of law is still developing, employers are best advised to contact legal counsel prior to taking disciplinary action because of an employee’s comments on social media.
