NLRB Backs Employee’s Right to Bad-Mouth Supervisor on Facebook

by Jonathan Sterling and James Goodfellow

An employer’s blogging and social networking policy that prohibits employees from posting disparaging comments online about coworkers or their employer has been deemed unlawful by the National Labor Relations Board (NLRB).

The NLRB recently issued a complaint and notice of hearing against American Medical Response of Connecticut (AMR), an emergency medical services provider, claiming it has been engaging in unfair labor practices. Following are the relevant background facts as set forth by the NLRB’s complaint.

Last year, AMR received a customer complaint about employee Dawnmarie Souza. The company asked Souza to prepare an incident report with respect to the complaint. She requested representation from her union, the International Brotherhood of Teamsters, Local 442, to aid in preparing the report. According to the NLRB’s allegations, Souza believed the report could result in disciplinary action against her. AMR denied Souza’s request and required her to write the report without representation. The Board claims the company threatened her with further discipline for requesting union representation.

Later on that day, Souza went home and posted a negative remark about her supervisor on her Facebook page from her home computer. Several of her coworkers responded in support of her posting, and she posted more negative comments about her supervisor. One month later, AMR terminated her, citing her violation of its policies, including prohibitions against:

  • the posting of “disparaging, discriminatory, or defamatory comments when discussing [AMR] or the employee’s supervisors, co-workers, and/or competitors” on the Internet;
  • “[r]ude or discourteous behavior to a client or coworker”; and
  • the “[u]se of language or action that is inappropriate in the workplace whether racial, sexual or of a general offensive nature.”

A subsequent investigation by the NLRB found that Souza’s postings constituted protected activities under the National Labor Relations Act (NLRA) and that AMR’s termination of her employment was intended to unlawfully interfere with those activities and discourage her and others from engaging in such activities.

A hearing date has been set for January 25, 2011. Stay tuned for the next issue of Connecticut Employment Law Letter, where we will discuss this case in further depth and detail and explain how employers may be able to draft policies that avoid the issues raised by the NLRB.

Jonathan Sterling and James Goodfellow are attorneys with Jorden Burt LLP in Simsbury, Connecticut, and frequent contributors to Connecticut Employment Law Letter.