Legal Writing for Legal Reading!

Social Media Sites “Likes” New Law’s Status

In the episode entitled “The Barbarian Sublimation” of the television show The Big Bang Theory, Sheldon complains to his roommate Leonard that the addiction of their neighbor Penny to online gaming, and her constant questioning about how to defeat certain boards and enemies, has caused him great aggravation and detracted from his daily night’s sleep.  When Leonard asks Sheldon why he doesn’t simply tell Penny to leave him alone, Sheldon replies, “I did! I told her: I texted her, I sent out a very emphatic Twitter, I even changed my Facebook status to ‘Sheldon Cooper wishes Penny would leave him alone!’ I don’t know what else to do!”

Now more than ever, people are using social media sites as their primary means of communication.  The proliferation of social media sites such as Facebook, MySpace, LinkedIn, and Twitter have allowed people to create a virtual identity as an extension of their actual, daily lives.  The staggering growth in the number of users using social media sites has overcome the traditional means of communication giving it a major push towards becoming obsolete.  As of the year 2011, the Pew Internet & American Life Project reports that 65% of online adults now use social networking sites, up from 61% just a year ago.  In fact, the use of social media sites have permeated our daily lives to such a significant extent that only email and Internet search engines, such as Google, accounts for more time spent on the Internet.

It comes with no surprise that the expansion of the social media revolution has brought about significant changes to the employment landscape.  As personal information is easily accessible through one’s social media page, employers have utilized this information to make employment decisions such as hiring, firing, and when conducting background checks.  Recently, even with the plethora of information that could be garnered from an employee’s social media page, new cases have suggested that employers must tread with caution before accessing and using this information when making employment decisions.

One of the most recent challenges to an employment action based on information gained from an individual’s personal social media site came across the National Labor Relations Board (“NLRB”).  On October 27, 2010, the NLRB’s Hartford Regional Office issued a complaint against the American Medical Response Team of Connecticut, Inc. (“AMR”) which alleged that an ambulance service unlawfully terminated an employee for making negative remarks about her supervisor on her personal Facebook page.  In this case, AMR’s employee, Dawnmarie Souza, was asked by her supervisor to complete an incident report in response to a customer complaint filed against her.  This was to be performed and presented during an investigatory interview.  As Souza had reasonable cause to believe that disciplinary action would result against her, she requested Union representation during this interview.  However, AMR denied her request and even threatened her with discipline for making such a request.

When Souza returned home later that day, she logged into her personal Facebook page and posted negative remarks about her supervisor using several expletives.  Her comments drew supportive responses from her co-workers and led to further negative comments about the supervisor from Souza.  AMR suspended Souza and later terminated her based on her Facebook postings on the grounds that they violated the company’s Internet policy which prohibited employees from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

Following an investigation into Souza’s unfair labor practice charge, the NLRB issued a complaint alleging that AMR’s Internet policy, as well as their act of terminating Souza, interfered with her rights to engage in protected concerted activity under the National Labor Relations Act (“NLRA”).  Most states, including Pennsylvania, abide by the Employment-At-Will Doctrine which provides that an employer is free to hire and fire an employee for good cause, bad cause, any cause, or no cause at all, and the employee is equally free to quit, strike, or otherwise cease work, subject to termination in violation of public policy or based on discriminatory motives.  In the case of AMR, the NLRB has seemed to create an extra niche into the protections afforded to employees.

Section 7 of the NLRA states that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those rights.  Although it is not specifically defined, the term concerted activity generally encompasses two (2) or more employees acting together in furtherance of matters of mutual interest, such as issues regarding employee compensation, benefits or improving workplace conditions.  To engage in a concerted activity, an employee must work with or on the authority of another co-worker and not just simply for his own interests.  However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity.  The NLRB has extended the protections of employees and their right to comment on social media sites regarding their wage, hours and working conditions, regardless of whether the employer is unionized or not.

In the case of Atlantic Steel Co., the NLRB developed a four part test to determine whether an employee’s activities lose their protected status due to insubordinate statements.  Specifically the board considers (1) the place of the discussion, (2) the discussion’s subject matter, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practice.

The case against AMR was recently settled whereby AMR agreed to (1) revise its overly broad Internet policy rules; (2) ensure that its rules do not improperly restrict employees from discussing their wages, hours and terms and conditions of employment with other co-workers while not at work; and (3) not discipline or discharge employees for engaging in such conduct.  Similarly, recent NLRB decisions display a recent trend towards deciding that employees do not lose the protections afforded to them under the NLRA notwithstanding their premeditated use of profane or obscene language toward a supervisor.  In fact, in the case of AMR, Acting General Counsel Lafe Solomon equated Souza’s Facebook postings with that of a typical water cooler discussion between co-workers discussing their working conditions.  Even though the case was settled, it does not provide a blanket protection in all instances of comments made through social media networks.  Nevertheless, it serves as a useful reminder that employers can no longer draft broad employment policies and prohibit employees from making disparaging or criticizing their employer or supervisors.  Public employers should also be weary in that any policy that restricts an employee’s ability to post public comments while off duty on a social networking site or Internet may implicate that employee’s First Amendment rights.

Although the NLRB’s position on this new protection has yet to be subject to judicial scrutiny, for now it seems that social media networking rights have prevailed over employer control.

This is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  This article  was originally published in Upon Further Review on January 11, 2012.

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