The first Facebook firing case under section 7 of the National Labor Relations Act: exploring the limits of labor law protection for concerted communication on social media.

• Author: O'Brien, Christine Neylon

1. INTRODUCTION

   In the first labor law case of its kind in the United States, Region 34 of the NLRB issued a complaint against AMR. The complaint alleged AMR's firing of Emergency Medical Technician (EMT) Dawnmarie Souza for posting derogatory comments about her supervisor on the social media website Facebook violated sections 7, 8(a)(1), and 8(a)(3) of the NLRA. (2) The Board alleged that the employer threatened Ms. Souza with discipline for requesting union representation at an investigatory interview that she reasonably believed could lead to discipline, thus interfering with her Weingarten right. (3) Under the rule in Weingarten, an employer violates section 8(a)(1) of the NLRA when it threatens to discipline an employee for requesting a union representative in this context. (4) In addition, a violation of section 8(a)(3) of the NLRA may occur where an employer discriminates against an employee who exercises her Weingarten right if the employer does so to discourage membership in a labor organization. (5) An employer is not required to acquiesce to a Weingarten request and may instead investigate matters without the interview. (6) In the AMR case, however, Ms. Souza was allegedly required to complete an incident report without the assistance of her union representative despite her Weingarten request, and she was suspended and terminated shortly thereafter. (7)

   According to the NLRB, AMR's blogging and internet-posting policy was also overbroad, constituting a violation of section 8(a)(1) of the NLRA because it unlawfully infringes on section 7-protected concerted activities. (8) Shortly after the Board issued a press release on the case, news of the EMT who was terminated from her employment for posting negative comments about her supervisor on Facebook went viral due to its significant implications for workplace social media policies. (9) Section 7 protects all employees who are covered by the NLRA, not just unionized employees, and thus the case has broad implications for employers. (10) In light of the NLRB's attention to this issue, companies need to be cautious as they promulgate and enforce electronic communications and social media policies to ensure they do not infringe on employees' section 7 rights. (11)

   The emergence of social networking means that people do all kinds of things on user-generated content websites that they used to do very differently. Workplace communication has evolved to such a degree that one can now say email supplants much face-to-face communication in many workplaces. Additionally, new media are arriving and growing even as we tweet. While the NLRB has been slow to adapt its historic rules to incorporate legal requirements for the commonplace and necessary communication medium of email in the workplace, it is likely that this will change under the new Obama Board. (12) Social networks have evolved and expanded over the past decade. Their reach is instantaneous and they provide a nearly unlimited ability to reach virtually the entire world. At the moment, it seems as though the current NLRB is poised to adapt existing legal doctrines to craft new rules and remedies regarding employer rules and restrictions concerning employee use of these social media sites.

   Employers clearly have rights at stake with respect to employee communication on email and social media. These rights include protecting their reputation, image, culture, and preventing disclosure of confidential information. Other major employer interests are to avoid liability for harassment and noncompliance with laws of all types, including discrimination, privacy, etc. Correspondingly, employees have the right to speak and connect on their own time and on their own devices as long as they do not violate the employer's legitimate business interests. It is quite possible that the newly constituted NLRB may find that employees have the right to speak, email, and engage in social media on nonwork time. This may be the case even on the employer's equipment if the employer allows the equipment to be used for other nonwork related communications.

   This paper analyzes the groundbreaking AMR Facebook firing case: the first instance where the NLRB issued a complaint in response to an employee who was discharged after posting comments on Facebook that violated the company's blogging and internet posting policy. (13) This case highlights the importance of employer policies concerning social media and electronic communications in general. The labor law issues raised in the AMR case are vital to vast numbers of employees and managers because the NLRA protects the right to engage in concerted activities of all employees covered by the Act. Moreover, the scope of the conduct AMR and other employers seek to regulate with various communications policies is broad and includes increasingly popular social media networking activity. Such policies affect employee activities beyond work time and place, and on the employees' own equipment, and the impact of social media on human and thus employee communication and connection is vast. (14)

   Part II of this article focuses on the labor law issues presented by the AMR case, analyzing the Board's position that the employee's Facebook postings regarding her supervisor were within the protection afforded by section 7 of the NLRA, as well as the procedure followed in the case. (15) Part III outlines the limits of protection for employee conduct that is either disloyal to the company or is in violation of company policy, in light of relevant precedent on NLRA section 7 rights and dual-motive discharges. Because the Board alleged that AMR's policy was overbroad and interfered with employees in the exercise of their right to engage in protected concerted activity, AMR's policy and the recent Advice Memoranda from the NLRB's General Counsel's Office on related employer policies and disciplinary actions are analyzed in Part IV. Issues of employee use of profanity with a supervisor and egregious employee misconduct that may undercut the protection afforded by section 7 of the NLRA are also examined in NLRB and appellate court cases in Part IV. In Part V, the legal implications of the AMR case for both union and nonunion employees are examined and recommendations are made for crafting workplace communications and social media policies that will protect a company's legitimate business interests but not violate the NLRA.

2. THE FACTUAL BACKGROUND OF THE AMERICAN MEDICAL RESPONSE OF CONNECTICUT CASE, CURRENT DISPOSITION, AND LEGAL ISSUES PRESENTED

   It should be emphasized that the facts in the AMR case are as alleged, following the facts in the charge and pleadings and news reports, because there were no findings of fact reached in a decision by an administrative law judge. The complainant, Dawnmarie Souza, posted negative remarks about her supervisor, Frank Filardo, through her Facebook page on the same day he required her to complete a written incident report relative to complaints about her and denied her request for a union representative to assist her with the report. (16) Her initial Facebook post stated that it "looks like I am getting some time off" and, using her workplace's numeric code for a psychiatric patient, she commented, "love how the company allows a 17 to become a supervisor." (17) Ms. Souza's Facebook friends responded with supportive remarks. One expressed relief at having left AMR, and Ms. Souza responded with further negative comments about her supervisor. She first said that Frank was "being a d***" and later, in response to another's question about Frank being back, she responded, "yep, he's a scum*** as usual." (18) On November 9, the day after Ms. Souza posted the remarks about her supervisor on her Facebook page, she was suspended and then terminated from employment on December 1, 2009. (19)

   AMR maintains a blogging and internet posting policy that prohibits depicting the company in any way without prior company approval. (20) The company's policy prohibits employees from making "disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors." (21) The company maintains that the real reason for Souza's termination was not her Facebook postings but rather two complaints received from patients and hospital staff within a ten-day period leading up to her suspension and termination. (22)

   Souza's union, International Brotherhood of Teamsters, Local 443, initially filed a charge against AMR at Region 34 of the NLRB on January 19, 2010. (23) The first charge alleged violations of sections 8(a)(1) and 8(a)(5) of the NLRA and listed as the basis of the charge that:

   The company did not allow Dawn Marie Souza her Weingarten Rights/Representation by the Union as she requested, when she was threatened with disciplinary action, which has resulted in her termination. By the above and other acts, the above named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. (24) An amended charge was filed on April 29, 2010, asserting violations of sections 8(a)(1) and 8(a)(3). (25)

   On about November 9, 2009, the above named Employer, by its officers, agents, and representatives, suspended its employee Dawnmarie Souza, and on December 1, 2009, terminated Ms. Souza because she exercised her Weingarten rights to Union representation on about November 8, 2009 and engaged in concerted protected activities, and because she supposedly violated certain work rules which are overbroad and thereby in violation of the National Labor Relations Act, as amended, as these rules tend to restrict employees in the exercise of their Section 7 rights under the Act. Within the past six months, and at all material times, the Employer has maintained and enforced the following work rules: The "Blogging and Internet Posting Policy" that prohibits employees from making...