Workers do it all the time. They talk about their bosses in unflattering terms. So should that language be used as a contributing factor in firing a worker?
For American Medical Response of Connecticut, the answer was "yes." A company policy stated that workers were prohibited from talking about the company on social media sites where they posted photos of themselves.
The worker in the case, however, has found an ally in the National Labor Relations Board (NLRB) which believes her posts on Facebook were protected by labor laws.
Here are
the facts as laid out in news reports on the case.
- A customer of American Medical Response filed a complaint about the employee.
- The worker's boss asked her to file a response to the complaint.
- The employee agreed to address the complaint and requested a union representative to assist in the process.
- The boss refused to let a union representative work on the response and threatened to discipline her for having asked.
- The employee went on Facebook and said unflattering things about her boss.
- Co-workers responded to the employee's comments and piled on the boss themselves.
- The worker became an ex-employee.
- The NLRB stepped in.
The company explained the firing to The New York Times. "The employee in question was discharged based on multiple, serious complaints about her behavior. The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law."
Lafe Solomon, acting general counsel for the NLRB, told the Times, "This is a fairly straightforward case under the National Labor Relations Act -- whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
Leon Rosenblatt, a labor lawyer, told the Hartford Courant, "I certainly do think they (ex-worker and NLRB) could prevail. We could see more and more of this in the future."
Saranne Murray, a lawyer at Shipman & Goodwin who represents the company in the case said it was complicated by the union issue. "I think there are arguments to be made on management's behalf that if she posted a comment that was disparaging of her supervisor, that would be disruptive of working relationships, and therefore not protected," she told the Courant.
Another firm, Morgan, Lewis & Bockius, which represents hundreds of companies in labor cases, sent out an advisory to its clients, according to the Times report. The firm said "All private sector employers should take note" of the case whether workers are represented by a union or not. "Employers should review their internet and social media policies to determine whether they are susceptible to an allegation that the policy would 'reasonably tend to chill employees'" rights to discuss a variety of topics that companies would prefer they not such as wages and working conditions.
Discussion Questions: Where do you come down on the use of social media to gripe about work? How would you seek to resolve this case if you were in charge of the company being sued?