Facebook. MySpace. Twitter. Digg. These are but a few of the ever-increasing on-line social media options and websites that are available to anyone with access to the internet. It was inevitable that the prevalence of on-line social media would have implications for the workplace. One hot-button issue is whether it is appropriate for an employer to discipline or terminate an employee who posts derogatory comments about the employer, co-workers and/or supervisors on a social media site. Although many employers would have the strong inclination to take adverse action against an employee under such circumstances, it is prudent to proceed with caution.
This caution is especially warranted given the recent decision of the National Labor Relations Board (NLRB) to sue American Medical Response of Connecticut, Inc. (AMR). According to the NLRB, AMR terminated an employee who had posted a negative remark about her supervisor on her personal Facebook page. That posting drew supportive responses from the employee's co-workers, which led to further negative comments about the supervisor from the employee. Specifically, the NLRB has alleged that the Facebook postings were “protected concerted activity,” which generally protects the rights of employees in both union and non-union settings to communicate with each other about wages, hours and other terms and conditions of employment. The NLRB further alleged that AMR's blogging and internet posting policy contained unlawful provisions, including prohibiting disparaging remarks when discussing the company or supervisors. Although AMR has denied the allegations and issued a statement that the employee was not discharged solely based on the Facebook page, but rather had multiple, serious performance issues, union and non-union employers should take heed.
The NLRB case is one of the most recent developments in this evolving legal area, in which there are few reported decisions. Over the past few years, employees who have been subject to termination as a result of postings have invoked claims including wrongful termination, wiretapping, invasion of privacy, and violation of state off-duty conducts laws.
With a lack of clear guidance from the courts, it is especially critical for employers to carefully draft and implement a social media policy which addresses such issues as (i) employee use of social media as it may relate to one's job responsibilities, (ii) comments about the employer's products (on which the Federal Trade Commission also has issued guidance), and (iii) employee posting of disparaging comments about the employer, management and employees. Based on the pending NLRB case, employers may want to review their social media policy to make sure that it informs the workforce that the policy is not intended to cover complaints or statements about employment terms and conditions. In addition, employers should consult with employment counsel to review the potential implications of taking adverse action against an employee based on social media postings. We are watching the NLRB case closely, which is expected to go to hearing in January 2011.
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