An ambulance company, American Medical Response (AMR), fired an employee after she was caught criticizing her supervisor on Facebook. In response to a complaint from the International Brotherhood of Teamsters, the National Labor Relations Board (NLRB) issued a complaint against AMR in which it alleged the firing was illegal because the employee's Facebook posting constituted a "concerted activity" for the purpose of collective bargaining or other mutual aid or protection with other employees which is a protected activity under the National Labor Relations Act (NLRA) and that AMR's policies and procedures regarding blogging, Internet posting and communications between employees were overly broad.
AMR's policy provided that "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors."
The case has been closely watched as a test of how much latitude employees have to post comments about their employment from their home computers on social media sites. In a 2008 survey, eight percent of U.S. companies indicated that they had dismissed employees because of Facebook postings. The NLRA allows employees to discuss the terms and conditions of their employment with co-workers and others.
In contrast to the AMR case, in a December 2009 memorandum, the NLRB stated that no employee could reasonably construe Sears' Social Media Policy to prohibit conduct permitted under the NLRA. Sears' policy provided:
In order to maintain the Company's reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:
- Company confidential or proprietary information
- Confidential or proprietary information of clients, partners, vendors and suppliers
- Embargoed information such as launch dates, release dates and pending reorganizations
- Company intellectual property such as drawings, designs, software, ideas and innovation
- Disparagement of company's or competitors' products, services, executive leadership, employees, strategy and business prospects
- Explicit sexual references
- Reference to illegal drugs
- Obscenity or profanity
- Disparagement of any race, religion, gender, sexual orientation, disability or national origin
The NLRB found that Sears' policy contained "sufficient examples and an explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not [NLRA] protected complaints about [Sears] or working conditions. The NLRB also pointed out that there had been no evidence that Sears implemented its policy in response to protected activities. Thus, it is clear from the different results in the AMR case and the Sears Memorandum that a provider's social media policy for employees will be analyzed by the NLRB in a very context-specific manner.
AMR recently settled the NLRB case by agreeing to revise its policies and procedures to ensure that they do not improperly restrict employees from discussing 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.