Federal Board Says Employees Shouldn't Get Fired Over Facebook Posts

Complaining about one’s boss on Facebook might not constitute a legal reason for termination, the National Labor Relations Board argues in a complaint filed October 27.

Actually, only part of the complaint directly concerns communications on Facebook. But still, the development is really cool for free speech and employee rights. The coolest part is that the independent federal agency is suing American Medical Response of Connecticut, Inc. for having an overly broad blogging and online posting policy, which appears to be the same type of rule lots of employers have been embracing lately.

If the NLRB wins this lawsuit, this could become a first step toward Facebook actually becoming a place where unfair employment practices could get called out. Here’s the independent federal agency’s synopsis of what has happened so far:

When asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation from her union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings and because such postings violated the company’s internet policies.

An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity. A hearing on the case is scheduled for January 25, 2011.

The NLRB release doesn’t clarify whether the hearing is an informal one, or the actual case opening before a judge. Courtrooms often have really long waiting lists for cases to reach the floor, so I suspect the event scheduled for January is some form of preliminary. But if that hearing prompts the case to settle out of court, then the wrongfully terminated employee gets relief that much sooner.

Not surprisingly, American Medical Response disagreed with the NLRB charges in a prepared statement given to the New York Times.

Although the NLRB’s press release made it sound as if the employee was discharged solely due to negative comments posted on Facebook, the termination decision was actually based on multiple, serious issues. AMR takes seriously its obligations to the community to provide high quality emergency medical care. In this case, we believe the facts will prove that this was an employee who failed to meet the important standards necessary for us to provide this service to the community.

Even if “multiple, serious issues” get enough substantiation for the defense to win, this case still marks the first time NLRB has taken up freedom of speech on Facebook. Very likely, the agency could take up additional cases like this in the future.

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