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The Risk in Firing an Employee for Posting Negative Remarks on the Internet about a Boss

Posted in Retaliation and Wrongful Termination

Modern-age advances in communications technology have brought both benefits and burdens to employers in recent times.  For example, email and the internet have greatly accelerated the pace by which employers may send and gather or receive vital information needed to stay competitive.  At the same time, those tools have, in some cases, distracted employees in ways that cut down on efficiency and productivity.

Fixing those problems is not so hard.  What is more difficult is handling those instances when employees use social networking sites (such as MySpace or Facebook), either while at work or from home, to disparage their supervisors or embarrass their employers.  When an employee publishes such unflattering or critical remarks about a manager or employer on such a site, it may be a natural impulse to question that employee’s loyalty and continued value to the employer.  However, employers must use caution before terminating an employee who has engaged in such activity.  Indeed, when one company recently fired such an employee, albeit for other asserted reasons, it found itself defending against a charge by the National Labor Relations Board (“NLRB”), a federal agency that handles allegations of unfair labor practices.

The company, an ambulance service in Connecticut called American Medical Response, said it did not fire the emergency medical technician because she posted unflattering remarks on a social networking site comparing her boss to a psychiatric patient.  Instead, the company explained that it gave the employee her walking papers in response to serious complaints about her treating patients in a rude and discourteous fashion.  Nonetheless, the NLRB accused the company of wrongful termination.

The NLRB’s position is that workers cannot be punished by employers for communicating about terms and conditions of their job with co-workers or anyone else because such communications are protected under the National Labor Relations Act.  That law, which also gives employees the right to form or join unions, forbids employers from taking action against union and non-union employees alike for discussing work conditions.  According to the NLRB, a worker’s criticism of her supervisor on a social networking site generally constitutes “protected concerted activity.”

While the law protecting discussions about working conditions has been around for many years, this utilization of it is ground-breaking because it and other laws have not yet been widely applied to communications on social-networking sites, which can reach many more people far more quickly than more traditional modes of communicating.  American Medical Response told the media that it believes the offensive statements made about the supervisor are not protected under federal law.

The NLRB has alleged that the employee posted the remarks in question on her own page, her own time, and from her own home.  In other words, she did not use her employer’s computer to publish the critical commentary, and she did not do so when she was on the clock.  Some legal analysts believe that an employer may be in a better position to punish such employees if they use company resources or time to engage in such activity.

A hearing by the NLRB is scheduled to take place on January 25.  Regardless of how this particular case resolves, it serves as a good reminder that employers must be cautious in responding to negative comments spoken, written, or posted by employees about their bosses or working conditions.  In that vein, employers should consult legal counsel when drafting or updating their social-medial policy and whenever termination is being considered for any reason.