NLRB “Facebook Firing” Case Ends with Settlement

The highly publicized “Facebook firing” case, brought by the National Labor Relations Board (NLRB) and discussed in a November 12, 2010 post in the Employment Law Alert, ended with a settlement announced on February 7, 2011. According to the Complaint, American Medical Response of Connecticut Inc. (“AMR”) terminated an employee for criticizing her boss on her Facebook account.

As announced by the NLRB in a news release, AMR will “revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work,” and that they “would not discipline or discharge employees for engaging in such discussions.” AMR’s internet policy had prohibited online comments that “berate” and “slander” supervisors.

In addition, the company also promised that “employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation.” The allegations involving the former employee’s termination were resolved through a separate, private agreement between her and AMR.

Although there was neither a public hearing nor a formal decision by the NLRB, the NLRB’s commencement of the action and settlement announcement reflect its intention to police the degree of control employers seek to assert over employees’ social-media communications. The National Labor Relations Act (NLRA), the 75-year-old law under which the complaint was brought, which restricts employers’ attempts to interfere with or restrict employees’ attempts to improve the “terms and conditions of their workplace and environment,” admittedly contains no provisions relating to such mediums. What remains to be seen is the degree, if any, to which the NLRB, the courts, and/or Congress permit employers to more greatly restrict and control the social-media communications of employees in recognition of the significant quantitative and qualitative differences between electronic posts that are viewed and forwarded almost instantaneously by numerous strangers — possibly millions — worldwide and traditional small-group concerted activities such as face-to-face conversations, picketing, and sit-ins.

In light of this case and the rapidly changing landscape of electronic communications, employers should review their social media policies to ensure that they do not unduly inhibit or restrict their employees’ rights to act in engage in protected activity.