NLRB Settles Facebook Firing Case

February, 2011

Earlier this week, the National Labor Relations Board (NLRB) settled a case involving an employee who was terminated after posting derogatory comments about the company on Facebook. The case at issue involved an employee from American Medical Response who took to Facebook to post extremely negative comments about her supervisor and was subsequently fired.

The company claimed she was fired for a long history of poor behavior which resulted in multiple complaints. The NLRB claimed that her posts should be considered protected activity and that her firing was unlawful. The NLRB said that it was protected activity under the NLRA when the employee took to her Facebook to criticize her supervisor which resulted in her fellow co-workers commenting on her post. The NLRB said that although the company’s policy prohibits employees from making "disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisor, co-workers or others,” it was too vague.

In the settlement, the Company agreed to revise its policies pertaining to the use of social media so that it does not improperly restrict discussions on wages, hours or working conditions. The company also agreed it will not discipline employees for engaging in such discussions. It did not agree to an "anything goes” policy and may still have restrictions on appropriate time, place and topic.

This case has garnered much media attention primarily because of the issue of whether the employee’s post and subsequent comments by her co-workers would be considered protected activity. This issue was not resolved in the settlement and still leaves the question out there. Two things are clear from this case: First, employers need to scrutinize their social media policies to make sure they are not too restrictive on employee discussions. Second, think twice and seek guidance before you discipline or discharge someone over a comment made on any social media outlet.


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