By Jennifer Martinez
Politico.com
NEW HAVEN, Conn. — Much to the chagrin of employers, workers have started taking to Facebook and other social networks to vent about their jobs, bosses and other matters. But whether it’s lawful for companies to fire an employee for posting these negative comments on a social network has become a federal matter.
A National Labor Relations Board judge today postponed a hearing into whether a medical transportation company in Connecticut had illegally fired an employee for criticizing her supervisor on Facebook as settlement talks continue, an NLRB spokesman said. The hearing was rescheduled for Feb. 8.
The NLRB in October took the unprecedented move of filing a formal complaint against American Medical Response of Connecticut that alleged the company engaged in “unfair labor practices” for terminating emergency medical technician Dawnmarie Souza, after she badmouthed her boss on Facebook and wrote comments to colleagues.
Is Facebook the new water cooler?
The NLRB maintained that workers’ communications with their peers about employment conditions, such as wages or supervisors, are protected by law — even if they take place on Facebook instead of by the water cooler.
Workers “can talk among themselves about their work, their working conditions, their wages and their supervisors, which is the situation here, and they’re protected by the National Labor Relations Act by doing that,” said Jonathan Kreisberg, the regional director of the NLRB’s Hartford office. “This isn’t anything new. The only difference here is where the comments were made and the circumstances.”
The dispute started when American Medical Response asked Souza to complete an incident report following a customer complaint about her and she was denied representation by the local workers union, the Teamsters Local 443, according to the NLRB complaint. Two superiors threatened Souza after she requested union representation, the complaint added, and later that day she took to her Facebook page to criticize her supervisor with other colleagues.
American Medical Response fired Souza a few weeks later.
In response, the Teamsters filed an unfair labor practice charge at the NLRB regional office in Hartford last January. The office opened an investigation into the charge and ultimately filed a complaint against American Medical Response, marking the first time the agency has argued that employees’ conversations about work conditions, known as “concerted activity,” is protected on social networks.
But American Medical Response argues that Souza was fired because of complaints about her behavior on the job, not because of the negative Facebook posts.
Fired for patient care complaints
“AMR has consistently argued that Ms. Souza was fired because of serious patient care complaints that they had received in 2009. They received complaints about her care on two separate occasions within a 10-day period,” said John Barr, the attorney representing American Medical Response. “The Facebook issue is mentioned in the termination letter... but we’re saying she would have been terminated regardless.”
The complaint did note that the company’s employee handbook says workers “are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”
In this case, the NLRB is arguing that that employers cannot prohibit workers from bashing employment conditions with their peers on social networks even if the company has an established social media policy, like American Medical Response did. The case is expected to have reverberations throughout corporate America.
“You can’t have policies that restrict people from talking about protected concerted activity and that creates heartburn for some employers,” said Reid Bowman, general counsel for ELT Inc., a San Francisco-based provider of online workplace compliance training. “This case is in a unionized setting and there was a unionized worker, but it’s a huge wake-up call to your non-unionized employers that you can have employees posting things on Facebook and that’s protected concerted activity.”
Legal experts agree that talking about your boss and employment conditions with colleagues has long been protected speech and will continue to be even if these conversations move to social networks.
“This is a very ordinary, garden variety case that comes up countless times under the law,” said Stanford Law professor William Gould, the former chairman of the NLRB during the Clinton Administration. “For the life of me, I don’t see what it is about Facebook that would make this [speech] unprotected. The [social] network is a more effective way of getting the message to more people, but I think that simply that it’s more effective and can reach a larger audience doesn’t make it unprotected.”
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