In a case that could have far-reaching implications about whether you can pink-slip employees for talking negatively about your company online, the National Labor Relations Board has filed a complaint over a firm's firing of a woman who complained about her boss on Facebook.
Dawnmarie Souza, a union paramedic who worked for Connecticut's American Medical Response ambulance company, was fired in December 2009 after bad-mouthing a man called "Frank" on Facebook. Her boss was named Frank Filardo, and she'd been in conflict with him for about a month over an incident report he'd asked her to write up on a client's complaint about her work.
Souza said she was talking about another Frank, not Filardo. Company policy forbids employees "from making disparaging, discriminatory or defamatory comments" about the company, superiors, co-workers or competitors. A co-worker also commented on Souza's Frank posting.
Whether she was complaining about Filardo or not, the NLRB – a federal agency responsible for enforcing employee-organizing rights – says this type of post could be protected. Why? Employees have the right to discuss work conditions with each other, according to the National Labor Relations Act – and those discussions can occur in cyberspace, says the NLRB. (NLRB also charged that the company 'maintained and enforced an overly broad blogging and Internet posting policy.')
Labor lawyer Leon Rosenblatt says the law already protects griping on e-mail and listservs.
"I certainly do think they could prevail," Rosenblatt told the Hartford Courant of the NLRB and Souza. "We could see more and more of this in the future."
American Medical Response said in a statement: "Although the NLRB's press release made it sound as if the employee was discharged solely due to negative comments posted on Facebook, the termination decision was actually based on multiple, serious issues."
A ruling in Souza's favor wouldn't necessarily put a total end to your ability to discipline employees for what they say about you online.
"'Employment at will' means you can be terminated or disciplined for a good reason, bad reason or no reason at all, as long as it's not an illegal reason," Rosenblatt said. (The rules are different in Souza's case because she's a member of a union.)
Union or not, if an employee were fired after writing that she was sick of being harassed or of having to work unpaid overtime, for example, she could fight that because the post reveals illegal activity.
Some 20 percent of companies said they had disciplined employees for violating firm policy on social networking sites, according to a study by e-mail security firm Proofpoint conducted earlier this year. That figure has doubled since 2009's survey.
The company and Souza will testify in front of an NLRB judge in January.