NLRB v. American Medical Response: A Rare Case of Protected Employee Speech on Facebook

The recent settlement between the National Labor Relations Board (NLRB) and an ambulance service company in Connecticut is the first of its kind to set legal limits on employers’ Internet and social media policies.

In December of 2009, employee Dawnmarie Souza was fired for posting negative comments on Facebook about her supervisor at the American Medical Response (AMR). After her supervisor denied her request for Union representation, Souza went on Facebook and called him a “dick” and “scumbag,” which spurred supportive Facebook comments from co-workers. She was fired shortly thereafter.

The NLRB, a federal agency that safeguards employee rights and prevents unfair employer practices, filed a complaint against AMR in October 2010. The agency alleged that their overly broad policies violated Section 7 of the National Labor Relations Act (NLRA), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB focused on how AMR’s policies interfered with this specific right to engage in “concerted activities.”[1] In other words, employees must be permitted to discuss the terms and conditions of their employment with co-workers and others, and by terminating Souza for posting comments that drew support from co-workers, AMR had violated the NLRA. In late January – merely a couple months after the complaint was filed – AMR agreed to settle. The company promised to grant employees’ requests for Union representation, and more importantly, to revise its Internet and social media policies.

Legal Background

This case is not the first instance of the NLRB addressing employment policies on social media sites. However, this is the first in which the NLRB took the position it did; up until now, the NLRB has stood by employer rights to implement policies that maintained order in the workplace. In Lutheran Heritage Village (2004), the NLRB created a three-part test to determine whether a policy violates Section 7 of the NLRA: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

In 2008, NLRB applied this test in a memorandum regarding a social media policy at Sears Holdings. The agency found that the social media policy, which prohibited disparagement of the products, services, employees, leadership, or strategy of the company or a competitor, did not violate Section 7 of the NLRA. The Sears Holdings case is different from AMR’s case in that there was no employment termination and the terms of the policy showed non-interference with protected employee rights. However, this case does speak to the NLRB’s prior stance on social media policies: employers have the right to regulate against disruptive and unduly behavior, including speech on the Internet.

Discussion

It would be a mistake to take away from this settlement that people can now say whatever they like on their Facebook, Twitter, YouTube, or LinkedIn. (For more on this, check out “Fired Over Facebook: 13 Posts That Got People CANNED” by Huffington Post.)

To begin with, this case does not represent current law. The parties did not go to court and there was no judge-ruled holding. It was merely a settlement between AMR and the NLRB, and thus AMR’s decision to acquiesce, to revise its policies, is not binding on future cases.

Second, the NLRB’s general position is still that employers are permitted to regulate employee behavior, including speech on social media websites. Indeed, in prior cases, the NLRB stood by employers, approving of policies that maintained order in the workplace. It is well established that employees’ “free speech” rights are limited, especially when it comes to speech about employers, their business, and other employees, and this applies both inside and outside the workplace. Furthermore, at-will employers can legally fire their employees at any time and for nearly any reason; unless an employer fires an employee for one of the few, specified illegal reasons, the termination is legal.

In this case, the NLRB simply clarified that these generally permissible policies regulating free speech are not permissible if they interfere with employees’ rights to organize labor unions and engage in concerted activities. It seems like a tough call to say that nasty comments, calling one’s boss a “dick” and “scumbag,” are protected. However, Souza’s case is stronger than most cases of employee disparagement. Here, not only did other co-workers post their support on the issue, but the reason she posted them in the first place was because she was denied Union representation. These seem to be key factors that led the NLRB to view Souza’s comments as protected “concerted activities.”

Social media is, as one NLRB representative put it, part of the “modern workplace.” Thus, the same rules that NLRB applies to traditional in-person behavior will now apply to behavior on the internet and on social media websites. Employers can limit free speech on social media sites just as much as they can limit free speech in person, and employees can engage in protected “concerted activities” online just as much as they can do so in person. The lesson learned? If you wouldn’t say it in person, don’t say it on Facebook. Or at least privatize your page.


[1] Although “concerted activities” generally refer to two or more employees acting together to address an employment concern, these may also refer to a single employee’s action, on behalf of others, that is a reasonable form of protest.

 

Cite as: BTLJ, NLRB v. American Medical Response: A Rare Case of Protected Employee Speech on Facebook, Berkeley Tech. L.J. Bolt (March 7, 2011), http://btlj.org/?p=1111.
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