In November 2010 we reported the decision of the National Labor Relations Board (NLRB) to prosecute American Medical Response (AMR) for allegedly terminating an employee who posted negative remarks about her supervisor on her personal Facebook page from her home computer on her personal time. Because the employee’s comments drew supportive postings from co-workers, the NLRB asserted that the employee had engaged in concerted protected activity and had been unlawfully terminated in violation of the National Labor Relations Act. The NLRB also contended that AMR’s blogging and internet policy was unlawfully overbroad.
One day before the scheduled hearing on the NLRB’s complaint, the NLRB announced a settlement with AMR. According to the NLRB, AMR agreed to revise its rules to ensure that AMR did not improperly restrict employees from discussing their wages, hours and working conditions with (1) co-workers and others while not at work and (2) co-workers anywhere on company property during working hours. AMR also agreed it would not discipline or discharge employees for engaging in such discussions. AMR will draft revised rules and the NLRB will approve them if they are satisfactory.
AMR reached a private settlement with the terminated employee. Although the specific details of the private settlement were not announced, it was reported that the former employee received a “financial settlement,” agreed not to return to work at AMR, and agreed not to make any defamatory remarks about the company. AMR agreed to provide the employee a neutral reference.
Had this case not been settled, many observers believed the case would have provided the NLRB a platform to begin to revise the law regarding the lawful parameters of employee communications in the age of social media. Although the NLRB will not now have that opportunity in this case, it is clear that the current board’s position favors the right of employees to discuss working conditions on social media. As a result, employers should review and revise, if necessary, applicable Internet use and social-media policies to ensure they are compliant with the National Labor Relations Act.