Firing Over Facebook Could Change Labor Relations

Discussion
Nov 10, 2010

By George Anderson

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.


  1. A customer of American Medical Response filed a complaint about the employee.
  2. The worker’s boss asked her to file a response to the complaint.
  3. The employee agreed to address the complaint and requested a union representative
    to assist in the process.
  4. The boss refused to let a union representative work on the response and
    threatened to discipline her for having asked.
  5. The employee went on Facebook and said unflattering things about her boss.
  6. Co-workers responded to the employee’s comments and piled on the boss themselves.
  7. The worker became an ex-employee.
  8. 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?

Please practice The RetailWire Golden Rule when submitting your comments.

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22 Comments on "Firing Over Facebook Could Change Labor Relations"


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Bob Phibbs
Guest
10 years 6 months ago

In this case, with limited information, the one at fault appears to have been the boss. He should have gotten rid of her much earlier it sounds but was afraid of the union which only made things worse. Old lesson to remember: when something stinks, get rid of it or it will spoil whatever it touches.

Dan Berthiaume
Guest
Dan Berthiaume
10 years 6 months ago

Criticizing your bosses/employees/clients on Facebook is asking for trouble. People need to realize that online privacy and anonymity essentially do not exist. Unlike spoken words, online comments leave evidence behind, and unlike paper documents they cannot be shredded. I feel bad for people who get fired over things like this but ultimately they are playing with fire and getting burned.

Dr. Stephen Needel
Guest
10 years 6 months ago

The boss was stupid for not letting a union rep help the employee draft the response. The employee was stupid for bad-mouthing the boss on social media, leaving a “paper” trail. Fire the employee and fire the boss.

David Livingston
Guest
10 years 6 months ago

I personally think that an employer should have the right to fire anyone at anytime for no reason or any reason unless they have a contract. Just like having the right to ask a guest to leave your home. This would solve a lot of these gray area issues.

George Anderson
Guest
George Anderson
10 years 6 months ago

If all the workers who said their bosses were dopes were fired for saying so, we’d have a much bigger unemployment problem. The worker may not have been a candidate for “employee of the month,” but the fact that others in the company were quite willing to support her on Facebook suggests that a management problem exists also.

As to whether workers should be able to say what they want about an employer on social media sites, assuming proprietary information is not revealed, it seems reasonable they should be able to say what’s on their mind. We don’t normally see CEOs fired for saying dumb things in public forums that can cause a stock to dive or customers to seek other alternatives. Why shouldn’t rank and file workers have the same rights?<p

Bill Emerson
Guest
Bill Emerson
10 years 6 months ago

If I’m reading this correctly, there is a company policy that explicitly states that employees are prohibited from posting negative comments about work on social media. This employee ignored this policy. The fact that it involved a union is beside the point. Does union membership negate company policy?

George Anderson
Guest
10 years 6 months ago

The issue as we understand it, based on the NLRB’s statements, is the company’s policy was outside the law because it was too broad. This really has nothing to do with whether the workplace had a union or not as evidenced by the alert sent out by Morgan, Lewis & Bockius.

Federal labor law protects the rights of workers to discuss working conditions (and bosses) among themselves. The fact that it was on Facebook makes it no different than if the same conversation had taken place in a break room, via email, etc.

Law firms that represent companies should get a lot of billable hours out of this.

Mark Burr
Guest
10 years 6 months ago
Its all not as clear and straight forward as any of the differing opinions seem. There’s always their side, the employee’s side, and then the truth. In this case, it’s even worse due to the union’s side to further muddy up the water. At this point there are limited facts and a broad scope of interpretation. It’s a new area–a gray area. It’s through a medium that is only in its infancy. Its litigation history is limited and lacks solid precedence. This case and others will only begin to formulate that but it will not define it with any permanency. There’s a boundless amount yet to learn about the overall impact of social media in all aspects. The fact that it does leave its trail is a factor but it’s also not its conclusion. Just as social media is an infant, instances like this and those yet unimagined will begin an entirely new aspect of relations to employees, customers, and others. A win on either side of this one isn’t the final answer. The only… Read more »
Joan Treistman
Guest
10 years 6 months ago

Just as the company had included in their handbook dos and dont’s with regard to social media, they probably have included criteria for termination. If they followed their own rules which I would suppose were vetted by corporate attorneys, the termination would not be under such scrutiny.

Before we had handbooks at work we generally knew what was OK to discuss with others and what was not. Now there are employee handbooks which I believe are written primarily for the protection of the employer, but the employee knows absolutely what restrictions there are for the continuation of employment. That won’t entirely prevent litigation, of course, but should make a big difference.

From a subjective perspective, I believe it’s inappropriate to bad mouth anyone in public. Social media is public. It’s like screaming in the middle of the company cafeteria that so and so is a jerk. If you would not scream your feelings in the cafeteria, don’t publish them in social media. In my opinion, that’s true for employers, friends, and family.

Ed Rosenbaum
Guest
10 years 6 months ago

I see a bunch of wrongs and few rights in this case. The boss was wrong for not firing the employee sooner. The employee was wrong bad mouthing the boss & company using a public venue such as facebook. The boss was wrong for not allowing the union rep to assist in the rebuttal to the customer complaint. And again the boss was wrong for asking the employee to respond to the original complaint against her publicly. Too many wrongs here. So as Donald Trump would say to the boss “You’re fired. Get out of here.’

David Zahn
Guest
10 years 6 months ago

Answering as a non-attorney, so I admit partial ignorance of the law, implications of union membership, definitions of public vs. private, and therefore am using “reasonable man” logic:

If an employee says to others on a forum accessible by at least the boss, if not others; “don’t buy my company’s products, my boss is an idiot, we don’t do a good job here and there are better options available, etc.” – that seems to be grounds for dismissal.

In terms of expectation of privacy – I don’t see how Facebook is possibly viewed as private communication. I think that no one wins in this scenario, however, and the company, the employee, the boss, and everyone but the attorneys involved has mud on their face.

Jesse Rooney
Guest
Jesse Rooney
10 years 6 months ago

Employees have a right to discuss their working conditions with their peers. This protected right has traditionally been used to protect personal conversations around the watercooler or at the bar after work. As we develop new means of communicating with others, it will be interesting to see how the rights of employees change to keep pace. Do Facebook postings amount to watercooler chatter or unprotected public defamation? Personally, I think that in most cases employees should be free to vent on their Facebook pages, but time alone will tell how the law comes down on this.

George Anderson
Guest
10 years 6 months ago

Don’t know the answer here and therefore am simply playing devil’s advocate for the fun of it. If the employee’s Facebook account was restricted to just people she allowed to view it, then it seems an argument could be made that it was not public. In fact, it would seem to be analogous to discussing the subject with co-workers outside of the office while at lunch, for example. Would it be grounds for dismissal for people from the same workplace to be complaining about their boss then?

Gene Hoffman
Guest
Gene Hoffman
10 years 6 months ago

“Take my bread but not my reputation.” What beneficial purpose does denigrating a company or a superior have?

Mel Kleiman
Guest
10 years 6 months ago

As everyone of the posts above have pointed out we are missing a lot of information concerning what actually took place. There were also a lot of mistakes made by a lot of people.

The real question is, do you have an up-to-date living, ever changing plan and process for dealing with everything that is taking place in the world of social media? Whether it relates to customers, employees, or anyone else who posts anything on the web concerning your firm.

Gene Detroyer
Guest
10 years 6 months ago

In my mind, the employee can say whatever they want, in whatever venue they want without fear of retaliation. If they were an incompetent employee, they should have been fired for being an incompetent employee. If it was just an opinion of what they thought of their boss, no matter what the company policy, they have every right to say it.

A company policy that prevents people from criticizing the company is simply BS. It is no different than if there was a policy prohibiting people from criticizing the government.

The company would be much better off not doing anything they could be criticized for than having a policy hiding their foibles.

Craig Sundstrom
Guest
10 years 6 months ago

As most have pointed out, this case has little to do with facebook per se, and more to do with what cause, if any, should be needed for termination; suffice it to say, if someone makes disparaging remarks–whatever the medium–either they are justified, or the person has broader issues…focusing on narrow procedural issues misses the point (which of course is something that companies with problems/problem employees do a lot).

Doug Stephens
Guest
Doug Stephens
10 years 6 months ago

What it means (if they win) is that a person’s Facebook page is like their digital living room and they have a right to have conversations with their friends and coworkers in that space.

Just as a supervisor wouldn’t think of inviting themselves into an employee’s home, they should think twice about looking at their Facebook page.

This isn’t a story about a bad employee or a belligerent boss–it’s a potentially landmark socio/technical milestone.

Phyllis Heppenstall
Guest
Phyllis Heppenstall
10 years 6 months ago

I firmly believe that when you work and accept your paycheck from your employer, that you should be their #1 supporter. I am always inspired to think how great a company could grow to be with this kind of passion and willingness from their employees/work force.

When you become disenfranchised, disillusioned, non-passionate, and non-willing you should do yourself a big favor and grant yourself the gift of resignation. Find your passion elsewhere if it’s obvious it’s not a fit. Waste no time in a state of dilemma, trying to point fingers to justify or force an issue…be happy!

David Biernbaum
Guest
10 years 6 months ago

I have no problem with employees facing “real world” consequences for what they post on social networks as long as the consequences are reasonable.

Kate Blake
Guest
Kate Blake
10 years 6 months ago

The only way that a company would get the information that anything was said about them on Facebook is if they were “friends” of the employee. So the question would be how did they get the info? Whoever brought it to them would be someone that I would not want in my organization because they are “telling tales out of school” and display a lack of moral character.

When a company pays for your services it is for a limited number of hours in a day. When a company wants your services after hours, such as cheerleader or spy, they should pay for the the extra time.

Christopher P. Ramey
Guest
10 years 6 months ago

Everyone is responsible for their actions. There are no free passes.

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