NLRB Announces Groundbreaking Settlement in 'Facebook Firing' ULP Case
February 21, 2011
By: Lauren Hoye
On February 7, 2011, the National Labor Relations Board announced a groundbreaking settlement of a widely-publicized unfair labor practice dispute involving an employee who was terminated for posting disparaging comments about a supervisor on her Facebook page. Last October, National Labor Relations Board Region 34 issued a complaint against American Medical Response (AMR) in response to the unfair-practice charge, lending support to the idea that Facebook postings may constitute “protected and concerted activity” under the National Labor Relations Act (“NLRA”). Although the NLRB settlement is confidential, the “Facebook Firing” will likely impact employers, employees and their unions negotiate the terrain of employer social media policies in the future.
While the recent protection of social media activity is new, the NLRB’s protection of employee expression via more-established forms of media is longstanding. In 1976, for instance, the NLRB held that employee newsletter communications were protected. In that case, Richard Gould, an employee of Timpte, Inc. of Denver, Colorado, distributed a paper newsletter to fellow employees at his workplace in which he described his supervisor as “chubby and paunchy from the fruit of our own labor...” Timpte discharged Gould, an unfair practice charge followed, and the NLRB ultimately affirmed that the employer committed an unfair labor practice by unduly restricting Gould’s rights under section 7 of the National Labor Relations Act (“NLRA”), which protects employees’ right “to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Timpte, Inc. and Richard Gould and John L. Hoskins, 233 NLRB 1218, 1120 (1977). Under the NLRA, employers may not “interfere with, restrain, or coerce employees in the exercise of” their section 7 rights.
Over 30 years later, in 2009, Dawnmarie Souza, an employee of American Medical Response (“AMR”), posted a series of disparaging remarks about a supervisor on her Facebook page. In particular, Dawnmarie Souza posted: “[L]ove how the company allows a 17 to become a supervisor” – 17 is the company’s lingo for a psychiatric patient. Ms. Souza’s Facebook friends, including several of her AMR coworkers, viewed and commented on her post, expressing their support and adding additional negative comments about the supervisor. AMR then discharged Souza.
In October 2010, NLRB Region 34 issued a complaint alleging that Souza was engaged in protected activity under section 7 of the NLRA, and that AMR had fired her in violation of section 8 of the NLRA. The complaint also alleged (1) that AMR’s rule regarding communications among employees, including online posting and blogging, was overly broad; and (2) that AMR violated Souza’s rights when it refused to allow her to have union representation during a meeting regarding her Facebook posts. The Board noted that AMR’s policies prohibited employees from making disparaging remarks when discussing AMR or its supervisors, and from depicting AMR online without permission.
On February 7, 2011, the NLRB announced that a settlement had been reached. While many of the terms are confidential, we do know that AMR agreed (1) to revise its communications policies to ensure that they do not infringe upon employees’ right to discuss their wages, hours, and working conditions; (2) not to discipline or discharge employees for engaging in those discussions; and (3) not to deny employee requests for union representation in the future.
The Facebook Firing ULP and settlement leaves employers, employees and their unions with many questions about what the case means for the future. It is clear, however, that the NLRB views employer policies that interfere with employees’ ability to discuss work on Facebook or other social media outlets as subject to scrutiny under the NLRA. In the end, AMR revised its rules to be less restrictive of the rights of employees, a result that should prompt many employers and unions to review their own policies regarding online posting and blogging to ensure that they do not restrict employees’ rights under the NLRA.
Since Richard Gould’s 1976 newsletter, employees’ methods of communication have evolved from paper newsletters to online newsfeeds, tweets, and blog posts. Online social media outlets have become one of the most prevalent ways of communicating with one another, putting employers, employees and their unions in the position of grappling with how the existing law intersects with our changing communication patterns. The Facebook case confirms that employer social media policies are subject to scrutiny, and that employers and unions must ensure that those policies protect the rights of employees under the NLRA. The case also provides leverage for to employees and unions seeking to challenge social media policies that unduly restrict employees’ rights under the NLRA.
For more information on how Willig, Williams & Davidson can help you take advantage of this recent legal development, please contact one of our Labor Department attorneys at (215) 656-3600.