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Facebook Firing Case Sends a Warning to Employers From the National Labor Relations Board

Rosanna Sattler, Nancy Puleo February 24, 2011

Employees in almost every workplace use social media applications such as personal blogs, LinkedIn, Facebook, and YouTube.  According to its own statistics, Facebook, which is the most popular social networking site in the world, has over 500 million active users.  The average Facebook user creates ninety (90) pieces of content each month.

According to a 2010 study by Proofpoint, an e-mail security and data-loss prevention firm, seventeen percent of companies with 1,000 or more employees report having issues with employees’ use of social media. Eight percent of those companies report dismissal of an employee for comments on sites like Facebook and LinkedIn. This figure has doubled from 2009, when only four percent reported firing an employee over social media misuse.

Employers are increasingly implementing or considering implementing social media policies.  Most social media policies address whether such activity is allowed while at work for personal and/or work-related use, what company-related subject matter is prohibited from discussion, whether and to what extent employees may discuss their affiliation or employment with the company, and whether employees may post images depicting their employer or employer’s logos, insignias or other identifying information. 

The lawfulness of an employer’s “Blogging and Internet Posting Policy” was challenged in an October 27, 2010 complaint filed by the National Labor Relations Board (“NLRB”) in Connecticut.  The filing of the Complaint attracted significant national media attention.  As detailed in the Complaint, the employer, American Medical Response of Connecticut, Inc. (“AMR”), maintained the following policies in its employee handbook:

  • “Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporation Communications in advance of the posting;
  • Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”

According to the NLRB Complaint, AMR terminated an employee who “engaged in concerted activities with other employees by criticizing [an AMR supervisor] on her Facebook page,” in violation of AMR’s Blogging and Internet Posting Policy.  The employee’s negative comments about her supervisor drew supportive responses from her co-workers.  AMR claimed that it fired the employee for multiple complaints about her behavior, including negative personal attacks on a co-worker, which she also had posted on her Facebook page.  The NLRB claimed that AMR violated what is commonly referred to as an employee’s “Section 7” rights under the National Labor Relations Act (“NLRA”) by firing her for the Facebook posts.  The NLRB claimed AMR’s policy contained unlawful provisions which interfered with employees’ rights to engage in protected concerted activity under Section 7.  Section 7 protects the rights of employees to form, join, or assist labor unions, bargain collectively through the representative of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid protection.  Section 7 of the NLRA applies to unionized employers, as well as non-unionized ones.

This closely-watched case settled on February 7, 2011, just before it was scheduled for hearing.  The NLRB’s Office of the General Counsel issued a press release regarding the settlement, which sent an unequivocal message to employers about their social media policies. According to the press release, under the terms of the settlement, AMR “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 for engaging in such discussions.”  Although the press release did not identify the specific AMR policy the NLRB considered overly broad, the lesson for employers is that sweeping social media policies are likely prohibited under the NLRA.  Unfortunately, without a formal NLRB decision, employers will continue to lack precise guidance on the application of the NLRA to social media, particularly since AMR’s policy contained language commonly found in employers’ social media policies.

The AMR case underscores the need for employers, whether unionized or not, to be aware of the NLRB’s heightened interest in challenging social media and other policies that could be construed as overbroad and infringing on employees’ NLRA rights.  It is permissible, however, to prohibit conduct that is clearly not protected under the NLRA, including restricting social media communications, such as (1) conversations about an employer’s proprietary information; (2) explicit sexual references; (3) criticism of race or religion or other protected categories; (4) obscenity, profanity, or egregiously inappropriate language; and (5) references to illegal drugs.

The AMR case demonstrates that employers should ensure their social media policies include a statement that the provisions of the policy will not be construed or applied in a way that interferes with employees’ rights under federal or state labor laws.  Moreover, employers should tread lightly when considering termination of employees for their social media activities.  AMR raises the spectre of the severe consequences of an overbroad policy.  All discipline issued under such a policy may be unlawful, even if the conduct punished otherwise violates a lawful rule or policy.

If you have any questions or need additional information regarding this, please contact Rosanna Sattler orNancy J. Puleo or any other attorney in our Employment Group.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2011 Posternak Blankstein & Lund LLP.  All rights reserved.

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