If you think you can fire an employee who bad mouths your company, think again. The National Labor Relations Board (“Board”) says it is ok for an employee to bad mouth an employer on social media web sites.
Back in October 2010, the Board accused American Medical Response of Connecticut, Inc. (“AMR”) of wrongfully terminating an employee for posting disparaging remarks about her supervisor on Facebook. The employee, upset her supervisor, posted on the social media web site, “love how the company allows a 17 to become a supervisor.” Seventeen is medical lingo for a psychiatric patient. Co-workers joined in on Facebook with supportive comments.
The Board said that the posts on Facebook were “protected concerted activity,” meaning that, under the law, workers may discuss terms and conditions of their employment without fear of reprisal. On February 7, 2011, the Board and AMR reached a financial settlement and AMR agreed to substantially revise its Internet policy.
Since the settlement with AMR, the Board has taken legal action against several other companies, both union and non-union, for disciplining or discharging an employee for social media bad-mouthing. The Board threatened to sue Thomson Reuters for reprimanding a reporter for posting a message on Twitter criticizing management. The reporter, who also happened to be the head of the union at Reuters, tweeted, “One way to make this the best place to work is to deal honestly with Guild [union] members.” The union settled with Reuters just hours before the Board was going to file the complaint.
In May 2011, the Board filed a complaint against a nonprofit for firing five employees who had harassed a co-worker on Facebook. The co-worker griped on Facebook that employees were not doing enough to help the nonprofit’s clients. The five employees attacked the co-worker’s original comment and criticized working conditions, including work-load and staffing issues. The Board says these back-and-forth Facebook postings by the other five employees were protected under the law. Most recently, the Board took legal action against a car dealership that fired an employee for posting photos and comments on Facebook that were critical of the dealership.
In the wake of these Board complaints, employers should review their social media policies and take care when drafting social media policies that discipline employees for bad-mouthing. An overly broad policy and action taken to enforce it may violate the law.
The good news is that the Board has said that not all social media use by employees to criticize employers is ok. A reporter fired by the Arizona Daily Star for posting inappropriate tweets did not have his rights violated according to the Board. The reporter criticized the paper’s headlines, co-workers and a local television station in tweets. After the criticized television station complained, the reporter was fired. The Board said that the reporter’s firing did not violate the law because his tweets were not complaints about work conditions; rather, the reporter had been terminated for making inappropriate and offensive Twitter postings that were banned under company policy.