Reflections on American Medical Response:
Not “Ground-Breaking” But Important
Check those Employee Handbooks!
Traditional Exceptions to Employee
Venting (or Worse) Apply to Sites
As has been widely reported, the National Labor Relations Board recently filed a complaint against an employer for dismissing a worker for violating a “no depiction” rule. Specifically, the company discharged an emergency medical technician for complaining about working conditions on Facebook, thereby breaching the rule that the company should not be depicted “in any way” on Facebook or other social networking sites. A key fact: the employee complained on her own time, using her own computer.
Although American Medical Response of Connecticut has argued that the employee had also attacked a co-worker on Facebook, and was in fact let go for “multiple, serious complaints about her behavior,” what will be on trial will be the company’s rule. The Board says it’s too broad, and the Board may be right. Another rule provided: “"Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors."
Unfortunately, the general counsel for the NLRB, in discussing the complaint with the press, has equated employee griping on Facebook with venting at the water cooler. The analogy is incorrect: griping to 900 “friends” (or more, if the user’s “wall” is open to non-friends as well) is not the same as chatting with four co-workers. What if some of those friends work for a competitor?
Nevertheless, employee speech is protected concerted activity if it involves the terms and conditions of employment and the individual (or individuals) act in the interests of more than one individual. In this case the question is not whether she acted in concert (her complaints about the company drew responses from her co-workers on her Facebook “wall”) but whether it was protected. Although the employee, Souza, used vulgarities in attacking her supervisor, and implied that he was psychotic in her venting, it is unclear whether her speech would be sufficiently abusive to qualify as one of the exceptions to §7 protected concerted activity.
Those exceptions: speech arising from a personal attack on a supervisor, speech that falsely poses as fact and that disparages the employer’s business, speech that demonstrates gross disloyalty, or speech that is extreme in its tone, e.g., advocating violence or personal injury. Note that earlier this year, however, the Board considered these diatribes aimed at the company’s owner, and deemed them protected: a "Mother Fucker," a "Fucking crook," and "an asshole," and adding that the manager was stupid, nobody liked him, and everyone talked about him behind his back.
Hence if one of your employees while on Facebook posts a comment to the effect that his boss is a “jerk” and “totally incompetent,” you should hesitate to take disciplinary action. But if he goes a step further and refers to his boss as a “crook” who is stealing from the company, that’s libel.
Despite the challenges posed by the Board complaint from the Hartford regional office, your handbook can and should address social networking sites in your information technology policy and practice. Employees are not permitted to visit them during work and using company devices. Your policy can also state: “Of course you are free to use the Internet on your own time and with a computer or other electronic device not belonging to the company. You should keep in mind the loyalty that comes with your employment with the company, and you should refrain from derogatory comments about co-workers and other company employees. This guideline recognizes that employees are entitled to engage in protected concerted activity, including frank discussion of the terms and conditions of employment.”