Terminating Employees for Unapproved Posts

However, employees also engage in social media by posting both personal and work-related content for their own purposes and without company approval. When an employee posts information about his employer that is not approved, there is a risk that the employer's own online efforts can be thwarted and that its general business interests, both on- and offline, can be harmed. In such a situation, and in an employment-at-will state such as New York, can a company decide to fire the employee to eliminate the problem?

Are Employers 'Free to Fire'?

Until recently, there was an assumption that employers were free to fire at-will employees whose personal Internet activities harmed the employers. Indeed, the Internet term “dooced” was coined to refer to such termination, after a well-known blogger apparently was terminated by her employer for negative comments about the company posted to her Web site, “dooce.com.”

A recent complaint issued by the Hartford, CT, regional office of the National Labor Relations Board suggests that there may be limits on the right of a private employer ' unionized or not ' to terminate an employee in this situation. Indeed, although the complaint accused the company of several illegal employment acts, the board's news release's headline highlighted only that aspect that charged that the company had “illegally fired [an] employee over Facebook comments.” See http://www.nlrb.gov/sharedfiles/PressReleases/2010/R-2794.pdf.

As such, the release has sent shockwaves through the employment community, many of whom are considering whether their companies should enact a social media policy for the first time.

The Case

The underlying dispute involved American Medical Response of Connecticut Inc., an ambulance service, and one of its employees, Dawnmarie Souza, who, it is alleged, was fired because she engaged in protected activity including, inter alia, requesting union representation in regard to a disciplinary investigation against her, which request was denied, being threatened with termination because of her request for union representation, and engaging in protected speech on Facebook complaining about her supervisors. Case No. 34-CA-12576; Complaint and Notice of Hearing available at http://documents.jdsupra.com/daf37177-f935-4fe0-be1f-82c65d0f2ac3.pdf.

The complaint alleged that the company terminated Ms. Souza because she “assisted the union and to discourage employees from engaging in such activity.” As clarified in the news release, a core allegation in the complaint is the charge that the company's Internet and blogging posting policy contained terms that could interfere with its employees' right to engage in concerted action.

Unlike many employers that have not yet addressed employee use of social media, American Medical had an employee handbook that contained a blogging and Internet posting policy, as well as general standards of conduct. In particular, American Medical's handbook stated:

Blogging and Internet Posting Policy

Employees are prohibited from posting

Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting;

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.

Standards of Conduct [prohibiting the following conduct]:

Rude or discourteous behavior to a client or coworker.

Use of language or action that is inappropriate in the workplace whether racial, sexual or of a general offensive nature.

These provisions became at issue after American Medical denied Ms. Souza's request for union representation in connection with an investigation report she was directed to provide to her supervisor concerning a customer complaint about her work.

Later that day, from her home computer, Ms. Souza posted a negative remark about the supervisor on her personal Facebook page. That post drew some supportive responses from her co-workers, which led to Ms. Souza posting further negative comments on Facebook about her supervisor. Ms. Souza was suspended and later terminated for her Facebook postings and because such postings violated American Medical's Internet policies.

The National Labor Relations Board investigated and found American Medical's conduct in refusing Ms. Souza's request for union representation in connection with the investigation and, thereafter, threatening her in connection with that request, as well as enforcing its Internet policy in connection with her Facebook postings, violated Ms. Souza's rights under the National Labor Relations Act. As relevant hereto (and as amplified in its news release), it was the NLRB's position that Ms. Souza's Facebook postings constituted protected concerted activity, especially in light of the supportive responses from her co-workers, and that American Medical's blogging and Internet posting policy contained unlawful provisions.

In particular, the NLRB objected to the provisions in American Medical's handbook that prohibited employees from making disparaging remarks when discussing the company or supervisors and that prohibited employees from depicting the company in any way over the Internet without company permission.

Analysis

Although the NLRB complaint against American Medical did not constitute a final ruling against the company, it is important to note that the complaint has two important components.

• First, in the NLRB's view, Ms. Souza's comments were protected under federal labor law as “concerted activity.”
• Second, the handbook policies limiting social media activities of employees were unlawful.

'Concerted Activity'

Generally speaking, protected “concerted activity” arises when, with respect to working conditions or other matters that are of interest to them, employees act “for the purpose of mutual aid or protection.” See, e.g., Eastex Inc. v. NLRB, 437 U.S. 556 (1978). When employees talk about work issues ' or about their supervisors ' in the lunchroom, they might very well be engaged in this kind of protected behavior. Now, with so many people interacting on the Internet and creating their own online communities, the question arises as to whether online discussions of work-related topics, and even about supervisors, occur as the equivalent of virtual lunchrooms and should be protected activity.

Blog posts and Facebook comments ' even though they might be available to many people in excess of what was the case in lunchroom talk ' may meet that standard today, at least to the extent that other employees read or participate in the discussions or comments. Certainly, there are limits to the freedom that employees have to post information about their employers. For instance, revealing trade secrets and lying should not be protected. Lawyers and other professionals also may have ethical duties to safeguard the confidences of their clients, protect non-public information received from adversaries and prevent employees from taking actions that could be adverse to their clients' interests, which could be contrary to unfettered and unlimited speech on the Internet.

Similarly, there is a need for “concerted” activity, which means that a virtual or online gripe session that involves only one employee may not suffice. It remains an open question, however, as to what extent the communication should be limited to those who have an interest in the company and its employment practices, and not indiscriminate griping to the public at large.

In other words, a posting on an employee's Facebook “wall” that simply announces that he had a bad day at work is unlikely to suffice.

Internet Policies

The second issue raised by the NLRB was its repudiation of American Medical's Internet policies. This conclusion seems counter to the NLRB's decision just one year ago in a dispute involving Sears. See http://www.nlrb.gov/shared_files/AdviceMemos/2009/18-CA-19081.pdf.

'Sears' Case

In that matter, the International Brotherhood of Electrical Workers began organizing a group of service technicians. The campaign used various forms of online media, including the creation of a Web site and public pages on Facebook and MySpace. The service technicians communicated with their Sears colleagues around the country using an e-mail listserv known as “s-tech.” List members communicated with one another by means of mass e-mail discussions. The list was not sponsored by, administered by, or affiliated with Sears.

Sears issued a social media policy to all of its employees regarding their use of blogs, message boards, social networks and other types of online media. In its e-mail announcing the policy, Sears explained that it was a response to “some highly publicized examples of companies whose reputations have suffered as a result of inappropriate conduct (whether intentional or unintentional) by their employees in the social media.” The policy provided, in part:

In order to maintain the Company's reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

• Company confidential or proprietary information
• Confidential or proprietary information of clients, partners,
  vendors, and suppliers
• Embargoed information such as launch dates, release dates, and pending reorganizations
• Company intellectual property such as drawings, designs, software, ideas and innovation
• Disparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects
• Explicit sexual references
• Reference to illegal drugs
• Obscenity or profanity
• Disparagement of any race, religion, gender, sexual orientation, disability or national origin
• The social media policy became a frequent topic of discussion among the s-tech participants once it was promulgated. Specifically, the members debated whether or not the policy applied to their online discussions. Several participants expressed concern that the policy infringed on their freedom of expression.

Despite the new policy, list members openly continued to use the listserv to discuss the union campaign and the relative merits of unionization. Thereafter, the union challenged the policy. The NLRB rejected that challenge, finding that there was “no evidence” Sears used the policy “to discipline any employee for engaging in protected activity,” or that the policy “was promulgated in response to the union campaign, the s-tech listserv discussions, or any other [protected concerted] activity.”

While not unambiguously clear, it is reasonable to interpret the NLRB's position in the American Medical matter as merely applying the criteria considered in Sears and reaching a contrary conclusion. In that regard, unlike in Sears, the NLRB concluded in American Medical that not only did American Medical deny the employee's access to union representation when requested, but that its application of its social media policy was actually applied to interfere with protected activity and resulted in the wrongful termination of Ms. Souza.

What to Do

Employers face some uncertainty as to what impact, if any, the American Medical outcome will have on their ability to police employee social media activity that harms their business interests. It is important for employers to consider adopting a social media policy if they have not done so already. Such a policy should be tuned to an employer's specific business and interests and be directed to the protection of the employer's business, professional reputation and client obligations.

In addition, companies that have already adopted social media policies should consider reviewing them in light of the complaint issued in the American Medical case and the quickly changing nature of the law in this area. Can existing social media policies be interpreted as restricting legitimate employee rights? If so, there may be significant benefit to revising them now rather than awaiting litigation and a negative decision.

Finally, a reasonable interpretation of the two NLRB matters discussed above requires consideration of not just the terms of the policy, but the manner in which it is applied in the context of any particular circumstance. Thus, employers should tread lightly on enforcement of social media policies where an employee's postings criticize employment conditions to other employees, but do not otherwise implicate the employer's legitimate business interests, the privacy interests of its customers or violate other laws.

These steps should be taken by companies that are unionized and by companies that are not unionized, because rules regarding protected concerted activity may apply even to non-unionized workplaces. It is also important that all employers track developments in the American Medical case, and future decisions applying existing law to employee use of social media as the law evolves to address these new communications.

Shari Claire Lewis, a partner in the Long Island, NY, office of Rivkin Radler LLP, can be reached at [email protected]. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Editor's Note: On Feb. 7, American Medical Response of Connecticut settled the case mentioned in this article. Under the agreement, which was reached one day before a hearing by an administrative law judge was scheduled to begin, American Medical (AM) agreed to revise its “overly broad” social media policies. The employee, Dawnmarie Souza, settled privately with AM. The main issue of the case, i.e., whether employee discussions on
Facebook constitutes concerted activity under labor laws, was not addressed in the settlement. The case remains an important one as a cautionary warning to employers to tread carefully before firing employees for their social media activities.

Once the bastion of college students and computer geeks, social media is now established means of communication for mainstream society ' be it commercial, political or personal speech.

Businesses increasingly rely on social media to create “buzz” around their products and services, effectuate deals and sales, and provide key customer-business interfaces, among other things. Obviously, it is the businesses' employees, acting as employees, who post to the social media on their employers' behalf and with their sanction.

However, employees also engage in social media by posting both personal and work-related content for their own purposes and without company approval. When an employee posts information about his employer that is not approved, there is a risk that the employer's own online efforts can be thwarted and that its general business interests, both on- and offline, can be harmed. In such a situation, and in an employment-at-will state such as New York, can a company decide to fire the employee to eliminate the problem?

Are Employers 'Free to Fire'?

Until recently, there was an assumption that employers were free to fire at-will employees whose personal Internet activities harmed the employers. Indeed, the Internet term “dooced” was coined to refer to such termination, after a well-known blogger apparently was terminated by her employer for negative comments about the company posted to her Web site, “dooce.com.”

A recent complaint issued by the Hartford, CT, regional office of the National Labor Relations Board suggests that there may be limits on the right of a private employer ' unionized or not ' to terminate an employee in this situation. Indeed, although the complaint accused the company of several illegal employment acts, the board's news release's headline highlighted only that aspect that charged that the company had “illegally fired [an] employee over Facebook comments.” See http://www.nlrb.gov/sharedfiles/PressReleases/2010/R-2794.pdf.

As such, the release has sent shockwaves through the employment community, many of whom are considering whether their companies should enact a social media policy for the first time.

The Case

The underlying dispute involved American Medical Response of Connecticut Inc., an ambulance service, and one of its employees, Dawnmarie Souza, who, it is alleged, was fired because she engaged in protected activity including, inter alia, requesting union representation in regard to a disciplinary investigation against her, which request was denied, being threatened with termination because of her request for union representation, and engaging in protected speech on Facebook complaining about her supervisors. Case No. 34-CA-12576; Complaint and Notice of Hearing available at http://documents.jdsupra.com/daf37177-f935-4fe0-be1f-82c65d0f2ac3.pdf.

The complaint alleged that the company terminated Ms. Souza because she “assisted the union and to discourage employees from engaging in such activity.” As clarified in the news release, a core allegation in the complaint is the charge that the company's Internet and blogging posting policy contained terms that could interfere with its employees' right to engage in concerted action.

Unlike many employers that have not yet addressed employee use of social media, American Medical had an employee handbook that contained a blogging and Internet posting policy, as well as general standards of conduct. In particular, American Medical's handbook stated:

Blogging and Internet Posting Policy

Employees are prohibited from posting

Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting;

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.

Standards of Conduct [prohibiting the following conduct]:

Rude or discourteous behavior to a client or coworker.

Use of language or action that is inappropriate in the workplace whether racial, sexual or of a general offensive nature.

These provisions became at issue after American Medical denied Ms. Souza's request for union representation in connection with an investigation report she was directed to provide to her supervisor concerning a customer complaint about her work.

Later that day, from her home computer, Ms. Souza posted a negative remark about the supervisor on her personal Facebook page. That post drew some supportive responses from her co-workers, which led to Ms. Souza posting further negative comments on Facebook about her supervisor. Ms. Souza was suspended and later terminated for her Facebook postings and because such postings violated American Medical's Internet policies.

The National Labor Relations Board investigated and found American Medical's conduct in refusing Ms. Souza's request for union representation in connection with the investigation and, thereafter, threatening her in connection with that request, as well as enforcing its Internet policy in connection with her Facebook postings, violated Ms. Souza's rights under the National Labor Relations Act. As relevant hereto (and as amplified in its news release), it was the NLRB's position that Ms. Souza's Facebook postings constituted protected concerted activity, especially in light of the supportive responses from her co-workers, and that American Medical's blogging and Internet posting policy contained unlawful provisions.

In particular, the NLRB objected to the provisions in American Medical's handbook that prohibited employees from making disparaging remarks when discussing the company or supervisors and that prohibited employees from depicting the company in any way over the Internet without company permission.

Analysis

Although the NLRB complaint against American Medical did not constitute a final ruling against the company, it is important to note that the complaint has two important components.

• First, in the NLRB's view, Ms. Souza's comments were protected under federal labor law as “concerted activity.”
• Second, the handbook policies limiting social media activities of employees were unlawful.

'Concerted Activity'

Generally speaking, protected “concerted activity” arises when, with respect to working conditions or other matters that are of interest to them, employees act “for the purpose of mutual aid or protection.” See, e.g., Eastex Inc. v. NLRB , 437 U.S. 556 (1978). When employees talk about work issues ' or about their supervisors ' in the lunchroom, they might very well be engaged in this kind of protected behavior. Now, with so many people interacting on the Internet and creating their own online communities, the question arises as to whether online discussions of work-related topics, and even about supervisors, occur as the equivalent of virtual lunchrooms and should be protected activity.

Blog posts and Facebook comments ' even though they might be available to many people in excess of what was the case in lunchroom talk ' may meet that standard today, at least to the extent that other employees read or participate in the discussions or comments. Certainly, there are limits to the freedom that employees have to post information about their employers. For instance, revealing trade secrets and lying should not be protected. Lawyers and other professionals also may have ethical duties to safeguard the confidences of their clients, protect non-public information received from adversaries and prevent employees from taking actions that could be adverse to their clients' interests, which could be contrary to unfettered and unlimited speech on the Internet.

Similarly, there is a need for “concerted” activity, which means that a virtual or online gripe session that involves only one employee may not suffice. It remains an open question, however, as to what extent the communication should be limited to those who have an interest in the company and its employment practices, and not indiscriminate griping to the public at large.

In other words, a posting on an employee's Facebook “wall” that simply announces that he had a bad day at work is unlikely to suffice.

Internet Policies

The second issue raised by the NLRB was its repudiation of American Medical's Internet policies. This conclusion seems counter to the NLRB's decision just one year ago in a dispute involving Sears. See http://www.nlrb.gov/shared_files/AdviceMemos/2009/18-CA-19081.pdf.

'Sears' Case

In that matter, the International Brotherhood of Electrical Workers began organizing a group of service technicians. The campaign used various forms of online media, including the creation of a Web site and public pages on Facebook and MySpace. The service technicians communicated with their Sears colleagues around the country using an e-mail listserv known as “s-tech.” List members communicated with one another by means of mass e-mail discussions. The list was not sponsored by, administered by, or affiliated with Sears.

Sears issued a social media policy to all of its employees regarding their use of blogs, message boards, social networks and other types of online media. In its e-mail announcing the policy, Sears explained that it was a response to “some highly publicized examples of companies whose reputations have suffered as a result of inappropriate conduct (whether intentional or unintentional) by their employees in the social media.” The policy provided, in part:

In order to maintain the Company's reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

• Company confidential or proprietary information
• Confidential or proprietary information of clients, partners,
  vendors, and suppliers
• Embargoed information such as launch dates, release dates, and pending reorganizations
• Company intellectual property such as drawings, designs, software, ideas and innovation
• Disparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects
• Explicit sexual references
• Reference to illegal drugs
• Obscenity or profanity
• Disparagement of any race, religion, gender, sexual orientation, disability or national origin
• The social media policy became a frequent topic of discussion among the s-tech participants once it was promulgated. Specifically, the members debated whether or not the policy applied to their online discussions. Several participants expressed concern that the policy infringed on their freedom of expression.

Despite the new policy, list members openly continued to use the listserv to discuss the union campaign and the relative merits of unionization. Thereafter, the union challenged the policy. The NLRB rejected that challenge, finding that there was “no evidence” Sears used the policy “to discipline any employee for engaging in protected activity,” or that the policy “was promulgated in response to the union campaign, the s-tech listserv discussions, or any other [protected concerted] activity.”

While not unambiguously clear, it is reasonable to interpret the NLRB's position in the American Medical matter as merely applying the criteria considered in Sears and reaching a contrary conclusion. In that regard, unlike in Sears, the NLRB concluded in American Medical that not only did American Medical deny the employee's access to union representation when requested, but that its application of its social media policy was actually applied to interfere with protected activity and resulted in the wrongful termination of Ms. Souza.

What to Do

Employers face some uncertainty as to what impact, if any, the American Medical outcome will have on their ability to police employee social media activity that harms their business interests. It is important for employers to consider adopting a social media policy if they have not done so already. Such a policy should be tuned to an employer's specific business and interests and be directed to the protection of the employer's business, professional reputation and client obligations.

In addition, companies that have already adopted social media policies should consider reviewing them in light of the complaint issued in the American Medical case and the quickly changing nature of the law in this area. Can existing social media policies be interpreted as restricting legitimate employee rights? If so, there may be significant benefit to revising them now rather than awaiting litigation and a negative decision.

Finally, a reasonable interpretation of the two NLRB matters discussed above requires consideration of not just the terms of the policy, but the manner in which it is applied in the context of any particular circumstance. Thus, employers should tread lightly on enforcement of social media policies where an employee's postings criticize employment conditions to other employees, but do not otherwise implicate the employer's legitimate business interests, the privacy interests of its customers or violate other laws.

These steps should be taken by companies that are unionized and by companies that are not unionized, because rules regarding protected concerted activity may apply even to non-unionized workplaces. It is also important that all employers track developments in the American Medical case, and future decisions applying existing law to employee use of social media as the law evolves to address these new communications.

Shari Claire Lewis, a partner in the Long Island, NY, office of Rivkin Radler LLP, can be reached at [email protected]. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.