Imagine your company has aggressively confronted social media use by employees by instituting a blogging and Internet posting policy and distributing it through the employee handbook. The policy not only prohibits employees from making disparaging or defamatory comments about the company or its employees, but also prohibits employees from depicting the company in any way over the Internet. One of your union employees makes negative remarks about her supervisor on her personal Facebook page from her home computer. When co-workers of this employee, who are Facebook friends of hers, see the remarks about the supervisor, they post comments supporting your employee and further smearing the supervisor. Can you lawfully terminate these employees based on their violation of your social media policy? Probably not.

These facts closely resemble the controversy underpinning a complaint the National Labor Relations Board (NLRB) lodged against American Medical Response of Connecticut, Inc. (AMR) for allegedly violating the National Labor Relations Act (NLRA) by interfering with an employee’s right to engage in protected concerted activity.1 The NLRA protects all employees regardless of union or non-union status so that they may engage in discussions about the conditions of their employment. This protected speech can include communications about supervisors. However, only discussions between employees are considered protected “concerted activity” under the NLRA. Negative comments posted on Facebook or other social media sites that are merely a public statement and not a discussion (including posts and comments by other employees) likely would fall outside of the type of speech protected by the NLRA.

The dispute between AMR and its now-former employee, union member Dawn Marie Souza, started when AMR asked Souza to prepare an investigative report in response to several customer complaints about her work. The employee completed her report and then posted a comment about the situation on her Facebook page: “looks like I’m getting some time off. Love how the company allows a [psychiatric patient] to be a supervisor.” The employee also used several swear words to communicate how she felt about her supervisor. At that point other AMR employees, who were Facebook friends with Souza, chimed in with support. AMR subsequently terminated Souza based on the customer complaints about her work. However, it was clear that AMR had seen the employee’s Facebook comments before it made the termination decision.

Although the employee at the center of this controversy was a union employee, this case significantly impacts employers of both union and non-union employees. The NLRB has likened discussions on Facebook to discussions around the water cooler. Historically, this is the type of speech that the NLRB has been entrusted to protect so that employees may organize with the goal of eliminating unfair labor practices and creating healthier workplaces. Notably, this case marks the first time that the NLRB has issued a complaint based on an employee’s social media activity.

Unfortunately, employers will not have the benefit of the guidance that could come from a published opinion in this case. With a hearing scheduled for late January, the NLRB announced on February 7, 2011, that a settlement had been reached. The settlement included an agreement by AMR to revise its overly broad rules so as not to improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and to not discipline or discharge employees for having such discussions.

Because this case was settled, employers do not yet have case law interpreting what is permissible in restricting workers’ social media activities. However, the terms of the settlement provide some guidance and show that social media policies – at a minimum – should not bar workers from disparaging the company or supervisor or prohibit employees from depicting the company in any way without permission.

To reduce liability, employers should talk to their lawyers about:

  • reviewing practices and policies regarding use of computers and technology, Internet, social media and blogging with an eye toward broad prohibitions against employee discussions about the employer, as this may interfere with employee’s rights to engage in concerted activity and violate the NLRA •considering training employees on proper use of social media.

If your company does not yet have a social media policy, to reduce liability, talk to your lawyer about:

  • drafting a clear policy about employee use of social media at work and at home
  • tailoring your company’s policy to your corporate culture and industry. For example, a health care company may be concerned with disclosures that would violate the Health Insurance Portability and Accountability Act, while a technology company may embrace employee use of social media and ask its employees to think of new ways to use social media in marketing and advertising efforts.

 As with any other policy, an employer adopting a social media policy should notify all affected employees of the policy and any disciplinary consequences for violation of the policy. Employers may provide this notice in any way that is reasonable under the circumstances, such as through a meeting, e-mail, employee handbook, or other distribution, but should obtain a signed acknowledgement of receipt.

Whether your company already has a social media policy or is thinking about adopting one in your workplace, consult with counsel to create a policy that is tailored to your industry and addresses the specific needs of your business.

This article was originally published in the February 2011 issue of The HR Specialist. It is reprinted here with permission.