Posted on : 09-11-2010 | By : Julie Gottlieb | In : Buzz, Online Privacy, Social Media Policies
Although it is important for companies to implement social media policies, companies must think about social media in the same context as other forms of communication and regulate accordingly. This seems to be where the ambulance service, American Medical Response of Connecticut (AMRC), went wrong. Their social media policy allegedly bars employees from making disparaging comments about AMRC or its employees and prohibits employees from commenting about AMRC in any way over the Internet without permission. Now the legality of that policy is being tested.
AMRC fired Dawnmarie Souza, a union paramedic, after she wrote offensive comments about her supervisor on Facebook. While there are conflicting reports about the facts leading up to the Facebook post, it appears that Souza was required to write a response to a customer complaint, but was denied union representation by her supervisor. Then, according to a National Labor Relation Board (NLRB) press release, “Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee.” According to Steven Greenhouse’s article, Company Accused of Firing Over Facebook Post, Jonathan Kreisberg, director of NLRB’s Hartford office disclosed that Souza’s negative comments consisted of vulgarities and she wrote, “‘love how the company allows a 17 to become a supervisor’ — 17 is the company’s lingo for a psychiatric patient.”
Coming to Souza’s defense, the NLRB filed a complaint against AMRC for violating Souza’s federally protected workplace rights. Under The National Labor Relations Act employers are prohibited from interfering with an employee’s rights to organize for collective bargaining purposes, or to engage in protected concerted activities, or refrain from any such activity. Here, the NLRB, concluded that Souza’s Facebook postings were “protected concerted activity,” and AMRC’s blogging and Internet posting policies were “overly broad,” and unlawfully limited employees’ rights to discuss working conditions among themselves.
AMRC, in contrast, claims that the NLRB’s allegations are completely unfounded. According to Courtney Rubin’s article, Labor Board Backs Workers’ Right to Bad-mouth Bosses Online, AMRC said in a statement: “Although the NLRB’s press release made it sound as if the employee was discharged solely due to negative comments posted on Facebook, the termination decision was actually based on multiple, serious issues.” Additionally, AMRC argues that the offensive Facebook post was not concerted activity protected under federal law. An administrative law judge is scheduled to begin hearing the case on January 25.
Although this case is groundbreaking because it is the first time the NLRB has publicly defended an employee involved in a social media policy dispute, Lafe Solomon, NLRB’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.” It is important to note that Souza was interacting with co-workers. Had she been venting to non-employees, the court would be less likely to find that Souza was participating in “concerted protected activity.”
Prudent employers should read about this case and create social media polcies based on traditional labor laws or review existing policies and make necessary adjustments to ensure it does not ‘reasonably tend to chill employees’” exercise of federally protected rights to discuss wages, working conditions and unionization.