NLRB Backs Worker Fired After Facebook Posts Ripping Boss

Should you post this on your wall?: The boss is an SOB.

August 19, 2010, 11:28 AM

Nov. 10, 2010 — -- For the first time ever, the National Labor Relations Board issued a complaint that an employer engaged in unfair labor practices for firing an employee who made derogatory posts about her supervisor on Facebook.

The labor board issued the complaint against American Medical Response of Connecticut last week for firing medical technician Dawnmarie Souza after she criticized her supervisor online. The board also said that the firm had an overly broad employee Internet policy.

Images of Souza's Facebook page, provided by a lawyer for the company, show remarks including, "looks like I'm getting some time off. love how the company allows a 17 to become a supervisor," using the company's terminology for a psychiatric patient. Another post says, the supervisor is "being a d***" and a "scum***."

Calls to Souza were not immediately returned.

An attorney for American Medical Response, which provides emergency response and dispatch services, said that Facebook comments were not the reason for the termination of Souza on Dec. 1, 2009. John Barr, a partner with Jackson Lewis, said there were two complaints about Souza from patients and hospital staff within 10 days of each other from October to November 2009.

Barr said the company, based in Colorado, began an investigation into the two behavioral complaints. Souza, who is a member of the International Brotherhood of Teamsters Local 443 union, requested that a union representative be present during an investigatory interview on Nov. 8, 2009. The request was denied by her supervisors, which is when Souza engaged in "concerted activities with other employees" criticizing her supervisor on Facebook, according to the NLRB complaint.

"The chief reason she was terminated was her rude and unprofessional conduct," said Barr. "The two complaints were the reason for the termination. If she had not engaged in this inappropriate conduct, it's very unlikely that she would have been terminated."

The labor relations complaint against American Medical Response also stated that the company's "blogging and Internet posting policy" in its employee handbook is too broad.

An excerpt from the handbook states, "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superior, co-workers and/or competitors."

Jonathan Kreisberg, the regional director of labor board's regional office in Hartford, said that policy is vague because fundamental labor laws, whether online or petitioning with leaflets, allow an employee to criticize supervisors and talk with other employees.

"The basic law is nothing new," Kreisberg said. "She has the right to engage in these types of activities."

Kreisberg said this is the first labor board case that involves an employee discharged for online comments on her own computer during off-work hours. The labor board, an independent federal agency with authority over most private sector employers, was born out of the National Labor Relations Act of 1935.

Labor law experts say the outcome of this case, which will be judged in a hearing starting January 25 in Hartford, Conn., could have significant implications for employment and privacy laws. Kreisberg said it is possible that the two parties may settle before the January hearing; but if Souza wins, she may be reinstated, receive back pay, and American Medical Response would have to revise its employee online guidelines.

"Employers should look at their policies and see if they need to revise their positions," said Cynthia Sass, who has a private plaintiffs employment law firm in Tampa and is co-chair for the technology and section of the labor and employment section of the American Bar Association. "The NLRB applies to most employers."

Ron Meisburg, former general counsel for the labor relations board, said the board needs to allow employers more leeway in their social media policies. Meisburg, currently a partner in the labor and employment law department of Proskauer law firm in Washington D.C., said a board rule already makes it unlawful for employers to ban employees from making false statements.

"I think that may come as a surprise to a lot of employers," said Meisburg. "That's an area the board should revisit as well. It's obviously wrong to make false statements and I think employers should have more leeway to ban those."

While this may be the first time employers are under scrutiny for their online policies, employees are already acquainted with a constant stream of headlines about firings over content on Facebook and other social media.

June Talvitie-Siple, a supervisor of a high school math and science program in Cohasset, Mass., was asked to resign in August over her Facebook comments calling students "germ bags" and parents "snobby" and "arrogant."

Talvitie-Siple told she thought her comments were only visible to her friends and didn't realize that her Facebook settings had permitted the parents who contacted the school superintendent to read them.

"She did what was probably the most appropriate thing to do," Talvitie-Siple said of the superintendent's actions.While Talvitie-Siple may have learned her lesson, Sass cautions employees to do more than just check their Facebook settings.

"In some situations, employers have been successful at making courts force employees reveal to what it on their personal websites," said Sass. "Even if you have privacy settings, honestly, you shouldn't be putting anything on a website you don't want employers to see."

Sass described a sexual harassment case this year in the southern district of Indiana in which a court forced an employee who had brought the suit to reveal her social media site for evidence.

Lafe Solomon, acting general counsel for the National Labor Relations board, said that he may recommend to the board a policy regarding social media and labor law.

"The biggest challenge of this is that it's an area that probably changes exponentially every month and year," said Solomon. "I'm not sure we could see all possibilities of where this is going."

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