In an Alert we issued on November 4, 2010, we informed you of the National Labor Relations Board's (NLRB or Board) decision to prosecute an employer, American Medical Response of Connecticut, Inc. (AMR), because AMR allegedly discharged an employee after the employee posted a "negative remark" about her boss on Facebook using her home computer. According to the NLRB, the employee's critical comment "drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee." AMR allegedly terminated the employee for her postings because they violated the employer's Internet policy.

On February 7, 2011, the NLRB announced it reached a settlement with AMR. According to the NLRB, the settlement requires AMR to:

  • Revise its Internet policy to allow workers to discuss wages, hours and working conditions with co-workers outside the workplace; and
  • Refrain from disciplining or discharging employees for engaging in those discussions.

AMR also reached a separate, private settlement with the employee who, among other things, called her boss a "scumbag as usual" on her Facebook page.

Many commentators believed that had this case not settled, it would have given the NLRB a chance to update the National Labor Relations Act (Act) with the new realities of how employees communicate in the digital age. Although the NLRB will not have that opportunity, it is clear that the Board's current position allows employees to discuss their working conditions, even critically, on social media. What remains unsettled, however, is how negative an employee's online comments must be before he or she loses the NLRA's protections.

In any event, the AMR/Board settlement of the "Facebook Case" is a cautionary tale for employers to review and, if necessary, to revise their Internet and social media policies so that they are compliant with all applicable laws, including the Act.