A Final Update On The NLRB’s Facebook Firing Case

On January 25th, I posted an update on the NLRB’s Facebook firing case, which followed my prior November 4, 2010 post describing the underlying complaint.   This week, a final update, as that case has now been settled.

You will remember that a former employee of American Medical Response of Connecticut, Inc. claimed that she was illegally fired and denied union representation after posting negative comments about her supervisor on her Facebook page.   This has been a closely-watched case in social media circles and beyond, with the National Labor Relations Board (“Board”) taking the position that the employee was fired for engaging in “concerted activities” in violation of the National Labor Relations Act. 

Late this past Monday (one day before the scheduled hearing), the parties fully settled the case.   From the Board’s perspective, the company agreed to revise what were considered to be “overly broad rules” in its employee handbook about how employees could and could not communicate with co-workers about workplace issues and concerns, and further agreed that it would not in the future discipline employees because of union representation requests.   The February 7, 2011 press release issued by the Board’s Office of the General Counsel stated in part:

“Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

“The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

“The National Labor Relations Board is an independent federal agency vested with the authority to safeguard employees’ rights to organize and to determine whether to have a union as their collective bargaining representative, and to prevent and remedy unfair labor practices committed by private sector employers and unions.”

With respect to the resolution with the former employee over her discharge, that was the subject of a private agreement between the company and the individual, and, I suspect, that some monetary payment was made to avoid further litigation.  The terms of that part of the settlement, however, were not disclosed.

Employer Take Away:   What should you as an employer take away from this development?     The fact that this NLRB case has settled only means that there will not be a determination on the merits in this case.   As the law continues to develop, there is no doubt that the intersection of social media and employment-related decisions will be crossed again soon in court or an administrative agency.    In the meantime, these developments should continue to serve as a warning to you: (1) to be careful and deliberate when it comes to making employment decisions based on social media, with strategic consideration given to, among other things, how you want to use social media, and who in the company should be doing so; and (2) to create appropriate social media policies (and review existing ones) to make sure they don’t violate laws such as the National Labor Relations Act.

About The Author

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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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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