On December 1, 2009, Connecticut ambulance company, American Medical Response (“AMR”), fired an employee after she made negative comments about her supervisor on Facebook to fellow employees, some of whom posted supportive responses. The employee, Dawnmarie Souza, was fired for violating AMR’s “Blogging and Internet Posting Policy” that prohibits employees from among other things “making disparaging, discriminatory, or defamatory comments when discussing the company or the employee’s superiors, co-workers or competitors” and also from posting a picture of an AMR employee depicting the company, whether by way of a logo, uniform or otherwise, in any media without AMR’s prior written approval. Among her postings, Ms. Souza said: “love how the company allows a 17 to become a supervisor.” The term “17” is the company’s lingo for a psychiatric patient.
Stepping into the fray, on October 27, 2010, the National Labor Relations Board (“NLRB”) sued AMR alleging that Ms. Souza was wrongfully terminated because, under Section 7 of the National Labor Relations Act (“NRLA”), Souza’s Facebook postings were from her home and constituted protected concerted activity and further that AMR’s blogging and internet posting policy was too restrictive in that it interfered with employees’ rights to engage in such activity. [Complaint]
Section 7 protects the rights of employees to form, join, or assist labor unions, to bargain collectively through representatives of their own choosing, or to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRA applies to both unionized and non-union employers. In the non-social media context, the NLRB and courts have traditionally interpreted the language of Section 7 as protecting an employee’s right to discuss the terms and conditions of his or her employment with other employees.
Employees, however, do not have carte blanche to disparage employers or fellow workers. According to Marshall B. Babson, a former NLRB member, activity falling outside of the protection of Section 7 might include an employee’s lashing out at a supervisor without attempting to engage others, comments about a supervisor unrelated to the workplace, or disloyal and defamatory comments not based in fact. [New York Times]
Interestingly, in late 2009, the NLRB General Counsel refused to issue a complaint based on Sears Holdings’ Social Media Policy, finding it did not violate the NLRA because the policy, as reasonably interpreted, would not “chill” an employee’s Section 7 rights. GC Advice Memorandum, Sears Holdings, 18-CA-19081 (Dec. 4, 2009). Among other things, Sears’ policy expressly prohibited employees from disparaging the “company’s or competitor’s products, services, executive leadership, employees, strategy and business prospects” in any form of social media. In the Sears opinion, the Board made clear that the policy item regarding disparagement was included among other proscribed activities clearly outside the scope of Section 7 and, importantly, the employees continued, without repercussions, to engage in union discussion on a listserv after the policy was implemented. According to the opinion, the policy was therefore not reasonably interpreted by employees (nor the employer) to be infringing on their Section 7 rights. The opinion concluded: “In the absence of any evidence that the Policy has been utilized to discipline Section 7 activity, there is no Section 8(a)(1) violation and the case should be dismissed, absent withdrawal.”
In the AMR case, the complaint made it apparent, in the view of the NLRB, that AMR’s policy had infringed rights provided by Section 7. However, the AMR case settled on February 7, 2011, never having reached a decision on the merits. In settling, AMR agreed to change its “overly broad” rules regarding use of social media outside the workplace. A separate agreement was reached with Ms. Souza. Additional cases will hopefully increase the resolution of the somewhat currently blurry metes and bounds of how far an employer’s policy can go to restrain employees’ rights to communicate in social media.