Can An Employee Be Terminated For Calling His Employer "Scumbag" On Facebook?

The answer is not as obvious as previously believed. On Feb. 7, 2011, the National Labor Relations Board (NLRB) and American Medical Response of Connecticut, Inc. (AMR) settled a charge related to this very issue. The fact of settlement is a signal to employers that their social media policies need to be clearly communicated and in compliance with NLRB regulations. In this matter, an AMR employee posted derogatory comments about her employer on Facebook from her home computer. Specifically, she referred to her supervisor as a “scumbag” and compared AMR management to psychiatric patients.  AMR fired the employee citing its policy prohibiting employees from disparaging the company or commenting on the company online without permission. 

The NLRB characterized AMR’s nondisparagement policy as “overbroad” because it potentially infringed on an employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that AMR’s termination of the employee was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.

The NLRB considers such “water cooler conversations” about shared working conditions “protected concerted activity.”  For an employer this means that Facebook complaints may be deemed protected speech – especially where more than one employee is involved in the “conversation.” The NLRB’s position is that taking adverse action against an employee under such circumstances is unlawful.  This means that “overly broad” social media policies create potential liability for employers under the NLRB.

Under the terms of the settlement, the company agreed to revise its social media policy 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. Because part of the allegation was that the employee was denied union representation during an investigatory interview before she posted the Facebook comments at issue, AMR also agreed 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.  http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments 

The lesson from this matter is to consider whether your company’s social media policy restricts off-duty conduct. Relevant case law suggests that employers need to be cautious when attempting to restrict what an employee can or cannot say about the company off-the-job. One key suggestion is to avoid policies that overrun areas where employees have a high expectation of privacy (e.g., personal e-mail and password-protected Web pages like Facebook). Also avoid penalizing employees for engaging in protected concerted activity (e.g., discussing working conditions with co-workers, no matter the forum). Importantly, a policy prohibiting employees from denigrating the employer’s product or services on a social media website would likely be enforceable.

Remember that a policy addressing employee use of social media is not a “one-size-fits-all” endeavor and if you are using a handbook found online it is vital to review it with an eye towards the ever-changing laws on these issues. I advise my clients to ensure that an experienced employment lawyer reviews their handbooks. Your social media policy is not the only policy that may be subject to legal constraints. Different employers bring different legal considerations to that review and the lawyer reviewing your handbook needs to be well-versed in those considerations. 

As always, any policy should reflect the unique needs and values of the company and its core values and mission statement.  These tend to set the tone for the employer-employee relationship and the social media policy should reflect these ideals just like every other policy in your handbook.

Finally, consider how the policy will be communicated to employees. Ensure that employees and supervisors are educated about the new policy and provide training, if needed. Review the policy on a regular basis to make sure it effectively addresses the world of social media and its evolving landscape.

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