NLRB CHALLENGES FIRING OVER FACEBOOK POSTINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Based on published reports, the National Labor Relations Board (NLRB), which enforces the National Relations Labor Act (NLRA), has accused American Medical Response of Connecticut of firing Dawnmarie Souza, a medical technician, for violating the company policy of depicting the company “in any way” on Facebook (see, for example, this article). What’s interesting here is that recently, one of my students wondered aloud if there were any legal consequences for saying nasty things about employers on Facebook, and if there is any case law on the topic. We did a quick search on Lexis/Nexis, and as far as we can tell, this is a first. An administrative law judge will hear the case beginning January 25, 20100. The facts of this case are thought provoking.

As a starting point, it should be noted that the NLRB was created in 1935 as part of the NLRA with the purpose to "serve the public purpose by reducing interruptions in commerce caused by industrial strife. It seeks to do this by providing orderly processes for implementing and protecting the rights of employees, employers and unions.'' (see NLRB manuals here). Its two main functions are to oversee unionization elections and to respond to complaints of unfair labor practices. The NLRA applies to private entities independently of whether they are unionized.

According to published reports, Souza was ordered to prepare a response to a customer’s complaint about her work and her supervisor would not allow a union representative to help prepare her response. Souza then mocked her supervisor on Facebook using vulgarities and suggesting he had a mental illness. Her posts drew supportive comments from several co-workers.

The critical issue is that the NLRB permits employees to discuss and criticize their employers among themselves. Thus, it would be illegal to fire an employee who, for example, was overheard having a conversation at the office water cooler. The question here is whether this protection extends to similar conversations on social networking sites. The company claims Souza was terminated for multiple serious complaints about her behavior, including personal attacks against a co-worker, also posted on Facebook.

Regardless of how this case plays out, the NLRB has sent a strong message that companies with policies relating to social networking by employees will be closely monitored in the future.

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