American Medical Response fired one of its workers after she made negative comments about her supervisor on Facebook. The National Labor Relations Board (NRLB) issued a complaint against the company, alleging that it illegally terminated the employee. The NLRB further argued that a worker’s criticism of their boss is, “a protected concerted activity,” under the law, which protects employees’ ability to comment on the conditions of their employment.
American Medical Response claims, in return, that the employee was fired because of serious complaints about her behavior and not because of the Facebook incident.
Pundits set this case up to be precedent-setting in the ever expanding area of employment law regarding social media protocol. However, the case settled privately before going to trial.
Under the terms of the settlement, which was approved by the NLRB, American Medical Response agreed to revise its rules. The company agreed not to discipline or discharge employees for engaging in discussions about wages and other work issues when not on the job.
In 2013, the NLRB decided that a Facebook comment section among employees was protected concerted activity. The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether their employer was violating labor laws. These conversations for mutual aid and protection are classic concerted protected activity.
Furthermore, an employer may be in violation of Section 8(a)(1) of the National Labor Relations Act if they prohibit employees from discussing “protected concerted activity” on social media sites.
So, can you fire an employee for publishing negative information about you or your company on a social networking website? The answer, while still in flux, is likely no. However, in order to curtail such employee activities, it is advisable to devise a comprehensive social media policy under the guidance of your attorney and ask all employees to sign and acknowledge it.
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