Legal Updates

The Anti-Social Network? The Risks Of Firing Employees Who Complain On Facebook

On February 23, 2011, a Bourne, Massachusetts firefighter was fired for posting controversial comments on his private Facebook page, allegedly bringing discredit to his department.  Similarly, an employee of the Philadelphia Eagles was fired after bashing management for a player trade; and a North Carolina waitress was let go for complaining about customers on Facebook.   It seems as if these type of stories are popping up all over the place these days and with increasing frequency. 

As the use of social media continues to increase, and as employees continue to astound us by posting comments that probably should never have been put in writing, employers are asking, “When can I fire an employee for his online misconduct?”

Recently, the National Labor Relations Board (“NLRB”) reminded employers that they should be careful to determine whether the employee might be engaging in “concerted activity” under the National Labor Relations Act (“NLRA”) before discharging an employee.  That is, employers should first determine whether the employee was discussing wages, hours, and working conditions with co-workers and others, for their mutual aid and protection.  Such “concerted activity” of both union and non-union employees is protected under the NLRA.

The NLRB’s reminder was prompted by an unfair labor practice complaint filed last October against a Connecticut emergency medical services company, American Medical Response (“AMR”).  In that case, the employee in question had requested union assistance in preparing a written response to a customer complaint.  When her supervisor denied her request and threatened to discipline her, she openly mocked him on her Facebook page.  Her postings sparked supportive comments and additional criticisms about the supervisor from her coworkers.  AMR explained in a public statement that “[t]he employee in question was discharged based on multiple, serious complaints about her behavior,” and “held accountable for negative personal attacks against a co-worker posted publicly on Facebook.”

The NLRB General Counsel, who prosecutes such complaints, alleged that the discharge violated the NLRA because the employee was engaged in protected activity when she posted the comments about her supervisor and responded to further comments from her co-workers.  The General Counsel also alleged that AMR maintained overly-broad policies regarding blogging, Internet posting, and communications between employees, and that AMR had illegally denied union representation to the employee.  Some excerpts of the alleged “overly-broad” policies cited in the complaint are as follows:

• “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”

• “Rude or discourteous behavior to a client or coworker” [is prohibited].

• “Use of language or action that is inappropriate in the workplace whether racial, sexual or of a general offensive nature” [is prohibited].

Employers have been anxiously awaiting the result of this case to help provide a framework for an employer’s policies and practices.  For example, is it a violation of the NLRA to prohibit disparaging comments?  Unfortunately, those clear answers did not arrive because the parties settled the case on February 7, 2011.  However, some guidance can be gleaned from the terms of the settlement, which was publicly announced by the NLRB in a press release dated February 8, 2011.  Specifically, the NLRB reports that AMR agreed to revise its policies “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.”  AMR also agreed that it would not deny employee requests for union representation, discharge employees, or threaten employees with discipline for seeking union representation in the future.  A private settlement was reached with the former employee with respect to her allegations related to the termination.

Although employers generally have broad discretion to discharge employees for conduct that may be harmful to the company, employers should always consider whether such conduct may be protected under the law.  This task is made more complicated by the increasing use of social media, which creates an indelible water cooler conversation.  Accordingly, we encourage employers to:

• Carefully draft their social media policies to define acceptable behavior in and out of the workplace, while remaining mindful of employees’ right to engage in “concerted activity”;
• Before deciding to take action against an employee for online conduct, determine whether such conduct could be construed as protected activity (whether under the NLRA or other laws); and
• Determine whether there are laws in your state that restrict employers’ rights to encroach upon off-duty conduct.

Please call us if you have any questions regarding the AMR case, or if you would like assistance with social media policies or related disciplinary actions.