Employee Terminated For Facebook Postings To Have Her “Day In Court”


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

The National Labor Relations Board (NLRB) recently issued a Complaint against a company accused both of maintaining an unlawfully restrictive policy concerning employees blogs and social media postings and unlawfully terminating an employee because of her derogatory postings about the company and her supervisor on her Facebook page.

American Medical Response of Connecticut, Inc. maintained a policy which prohibited employees from making internet postings which were disparaging, discriminatory or defamatory when discussing the company, superiors, co-workers, or competitors.  It also prohibited rude or discourteous behavior toward a client or a co-worker.

After her supervisor had engaged her in an investigatory interview based on her unrelated conduct on the job, an employee posted harshly critical comments about her supervisor on her Facebook page.  Approximately three weeks later, her employment was terminated.

The theory of the NLRB in pursuing the case is that the employee was engaged in “concerted, protected activity” when she posted her comments.  In other words, even though there was no union involved, the employee had engaged in communications with other employees, namely the comments posted on Facebook, which related to her terms and conditions of employment. Incidentally, after her Facebook posting she received several favorable posts from co-workers.  Under NLRB law, an employer may not prohibit employees from discussing their terms and conditions of employment with other employees or, in most cases, from criticizing the company, and may not take disciplinary action against them for doing so. This does not mean that all “concerted” activity will be “protected,” no matter how far it goes. If the comments go too far, they will lose their protected status. However, just where that line can be drawn is a gray area.

The hearing in this matter will not be held until January 25, 2011, and so, at this point, it is only an allegation, rather than a final decision or statement of NLRB policy.  However, all employers, whether a union represents their employees or not, should re-examine their blogging or social media policies with an eye toward removing wording which prohibits discussion of company policies or terms of employment or making disparaging comments about the company, supervisors or fellow employees.  The NLRB has long taken the position that if an employer maintains a policy prohibiting, for example, employees from discussing their wages or benefits that policy is unlawful on its face.  It appears that the NLRB is heading in the same direction with employee postings on social media websites.

We are following the American Medical Response case closely, and will keep readers informed of developments as they occur.

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