Fired for a Facebook Post? The NLRA and Internet Communications

The National Labor Relations Board (NLRB) recently accused an ambulance service company, American Medical Response of Connecticut (AMR), of illegally firing one of its employees on the basis of her Facebook activity. The labor law community considers this case to be ground-breaking because of its potential for setting precedent in the critical battle over the survival of unionization in the American workplace.

AMR terminated the employee, Dawnmarie Souza, for breaking a company rule against “depicting the company in any way” on an Internet site featuring the employee’s picture. The alleged “depiction” in this case was several disparaging, mocking, and profane remarks Souza made on her Facebook page about her supervisor who would not allow a union representative to help Souza respond to a customer who complained about her. The NLRB alleged AMR violated NLRA laws prohibiting employers from punishing employees for discussing working conditions among themselves. In particular, NLRB argues the AMR company policy prohibiting employees from making disparaging or discriminatory comments when discussing the company or the employee’s superiors and co-workers violates Section 8(a)(1) of the NLRA.

Online organizing and activities are key issues in today’s labor movement. The presence of organized labor in the U.S. has declined over the past five decades from about 35 percent of the work force during the 1950s to 12.5 percent in 2005, including only 7.8 percent in the private sector. Labor unions, realizing that handing out leaflets and calling on employees will not succeed in organizing the modern generation of employees, have been utilizing emerging electronic technologies to augment these traditional tactics. For example, labor organizers are now using blogs and social networking sites to publicize their causes and inform, educate, and enlist non-union employees about the importance of unionization. The increasing influence of these sites, as well as efforts of employers to counteract this influence, raise issues related to employees’ rights to collectively bargain under the National Labor Relations Act (NLRA).

If the facts presented by AMR show reasonable grounds for dismissal, the judge may dismiss the case at summary judgment and thus never resolve whether the employee should have been allowed to post her work-related comments to her Facebook page. On the other hand, if AMR cannot prove that its decision to fire Souza was justified, the court may rule against the employer for an unfair labor practice (ULP) under Section 8(a)(1) of the NLRA for constraining concerted action among employees to discuss work conditions.

Although Section 8(a)(1) of the NLRA protects the  employee’s Section 7 right to “engage in . . . concerted activities for the purpose of collective bargaining”, this right is not without bounds. The NLRB, in its Atlantic Steel board decision, established a four-factor balancing test to determine whether employee speech is protected under the NLRA: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.” In Media General Operations, Inc. v. NLRB, the NLRB held the defendant in violation of NLRA Section 8(a)(1) for having fired an employee because of an outburst he made to his supervisor. The Fourth Circuit overruled based on the third NLRB balancing factor, holding that the employee’s outburst was sufficiently “profane and derogatory” that he had “forfeited the protections of the NLRA.”

An administrative law judge is scheduled to begin hearing the case on Jan. 25, 2011. Regardless of the outcome of this case, the NLRB and the courts will continue their efforts to balance the right of employees to collectively bargain with the right of the employer to further its economic interests. Therefore, the field of labor law will likely have several opportunities in the near future to develop the legal boundaries between Internet communication that comprises protected labor organization activity and that which is libelous, disloyal, or otherwise damaging behavior not protected under the NLRA.

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