Today is the scheduled hearing before an Administrative Law Judge at the National Labor Relations Board (“Board”) on the issue of whether American Medical Response of Connecticut Inc. violated the National Labor Relations Act (“NLRA”) by firing an employee after she criticized her boss on Facebook. When it is ultimately issued, the decision may have a significant impact on social media and employment law.
Back on November 4, 2010, I posted about the complaint filed by the Board, which alleged that the company’s employee was unlawfully terminated for engaging in protected concerted activities with her co-workers. You may remember that the employee went home from work and posted, among other things, how her boss was a “scumbag as usual,” and other comments about her working conditions. Since the NLRA protects covered employees who engage in “concerted activities” for their “mutual aid or protection”, the Board alleged that the employee’s Facebook postings constituted such protected activity.
The case will be heard today, and a decision is expected to be issued shortly.
Employer Take Away: What should you as an employer take away from this development? Today’s hearing may be the start of a significant decision making process by the Board. Or, it may not. It depends on the wording of the decision that is ultimately issued, and how far reaching the Administrative Law Judge wants to be.
On the one hand, this may be viewed as merely a “normal” termination case. Thus, regardless of the forum used to engage in concerted activity, the decision may simply find that the employee was or was not terminated due to activity protected under the NLRA. On the other hand, the decision may serve as the first time that one of the oldest employment laws is applied to the new social media age, highlighting the point that employers should be concerned not just with what new claims social media may spawn, but with the application of social media to traditional claims as well. In addition, the decision may contain findings regarding the propriety of the employer’s social media policy, and whether it violates the NLRA on its face by infringing on protected employee communications.
We will continue to follow this Board proceeding and post future updates.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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