Workplace Guidance Remains Elusive After Facebook Posting Case Is Settled

Employees may be rejoicing, but some legal experts are disappointed that the National Labor Relations Board reached a settlement on Feb. 7 with a company that fired an employee for bad mouthing her boss on Facebook, dashing hopes for a legal precedent to guide employers’ social media policies.

Dawnmarie Souza, an emergency medical technician with ambulance service company American Medical Response of Connecticut, was fired in 2009 after criticizing her supervisor on Facebook. Her case was scheduled to be heard before a federal labor board judge in Hartford, Connecticut, on Feb. 8.

“I had hoped we would get an administrative law judge’s decision on this issue,” said James Hays, an employment lawyer who is a partner in the law firm Sheppard Mullin Richter & Hampton in New York.

In the settlement, American Medical Response agreed to “revise its overly broad rules” to ensure that employees’ rights to discuss working conditions are protected, according to an NLRB written statement. Souza was fired for violating a policy that prohibits employees from depicting the company “in any way” on social media sites on which they post a picture of themselves—a policy that the board asserted was too broad. Additional details of the settlement are confidential.

“Did her comments meet the criteria for protected concerted activities or did it amount to water cooler talk? We don’t know,” Hays said. “The company made modifications to its policies, but what are they and what in the policy was problematic to the board? Unless they issue a copy of their revised employee handbook and someone gets a copy of the old one and does a comparison, we’ll never know.”

This was the first NLRB complaint involving an employee terminated for comments made on a social media site.

The settlement means that employers are still without a legal precedent to guide their decisions when it comes to employee speech on social media sites such as Facebook, LinkedIn and Twitter, but Hays said it won’t be long before another case emerges.

“We’ll have to wait for the next case where it goes a bit farther in the legal process,” he said. “I wouldn’t advise any client to say, ‘Well, that case got settled so we don’t have to look at this for a while.’ It’s just a matter of time before the next one comes along.”

The NLRB is an independent federal agency whose mandate is to uphold the National Labor Relations Act of 1935, which gives workers the right to form unions and protects their right to discuss working conditions, regardless of whether they are in a union. The NLRB complaint alleged that Souza, who was a union worker, was illegally denied her request for union representation in the matter.

Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, an offshoot of an American Civil Liberties Union workers rights task force, sees the settlement as a win for unionized workers but says it probably doesn’t mean much for nonunion employees, who are typically employed “at will,” meaning an employer does not need to show good cause for firing an employee.

“In reality, it means that people belonging to a union can complain about their boss on a social network site, but it doesn’t do much for the 90 percent of workers who don’t belong to a union,” he says. “If you’re fired because of your race you know that you should go to the EEOC [Equal Employment Opportunity Commission] for help, but most nonunion workers have probably never heard of the NLRB.”  

Rita Pyrillis is Workforce Management’s senior writer. To comment, e-mail editors@workforce.com.