The NLRB “Facebook Settlement:” Let’s Focus on the Facts

On February 7, 2011 the National Labor Relations Board (NLRB) issued a news release announcing it had reached a settlement with American Medical Response of Connecticut, Inc. (AMR) regarding the complaint filed by the Hartford (Connecticut) regional office in October 2010 alleging (in part) that AMR had illegally fired Dawnmarie Souza for comments she made about her supervisor on her Facebook page. The press release also indicated that AMR and Souza had reached an separate settlement regarding her termination, the terms of which were confidential.

Cyberspace is once again abuzz with press reports, blog posts, commentaries and comments from readers about the case in the wake of the announcement of the settlements. As with the original complaint last fall, the responses to the latest news are marked by exaggerations, distortions, misstatements of fact, and uninformed opinions, not to mention fairly heightened emotions that further distort the reality of what has transpired and what it means for both individuals and organizations.

As I did with my post on the original complaint (The NLRB’s Recent Action: Separating Fact from Fiction – and Unfounded Fear), I’d like to provide an assessment that focuses on the facts and evaluates the situation and its implications as rationally as possible. I am not an attorney, but I am fairly knowledgeable about employment law, and I strive to look at situations like this in a way that balances legal and business perspectives, as well as the rights of both employers and employees.

I welcome comments from readers and invite people to use this post to create a dialogue on this settlement and its implications.

 

 

Let me begin by correcting some of the misrepresentations I’ve read in the initial coverage of the settlements:

• There was never an NLRB decision or ruling. What they did was file a complaint against AMR for illegally terminating Souza. In other words, they were effectively a plaintiff in the case, not a judge.
• The assertion that Souza was fired for posting negative comments about her supervisor on her Facebook page should be qualified with the term allegedly. There was no determination of fact that her comments were the reason for her termination. The NLRB alleged that in their complaint, but AMR denied that was the case, claiming they terminated her for other reasons.
• An Administrative Law Judge was scheduled to hear the case at the end of January, but the hearing was delayed so the NLRB and AMR could hash out a settlement. When they did, the case ended with no hearing. It is critically important to remember that since there was no hearing, there was no ruling on this case (more on that below).
• Souza’s complaints regarding her termination was an independent matter that was settled confidentially between her and AMR.  Again, since there was no hearing and no ruling, there is no evidence that she “won” her case.

 

Reliable Sources

Rather than relying on second-hand reporting, I recommend reading the original sources – namely, the two news releases from the NLRB:

• November 2, 2010: Complaint alleges Connecticut company illegally fired employee over Facebook comment
• February 7, 2011: Settlement reached in case involving discharge for Facebook comment

For additional details and more depth of coverage, particularly from a legal perspective, the following can also be helpful:

• NLRB Posts Frightening Message in Facebook Case (a good overview in spite of the inflammatory headline)
• Landmark NLRB Facebook Case Ends With Settlement
• Facebook Firing Case Reaches Settlement
• Feds Settle Case of Woman Fired over Facebook Site

 

What a Careful Analysis Can Reveal

Though they’re often overlooked, the NLRB’s complaint involved two other allegations besides the one that has dominated the headlines (i.e., the alleged termination for posting “negative remarks about her supervisor on her personal Facebook page”). To quote the original news release, “the complaint also alleges that the company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy” (emphasis mine).

The NLRB’s case relied on all three allegations, and particularly on the fact that fellow employees responded to Souza’s original post and then engaged in dialogue that supported Souza and disparaged her supervisor/employer. The response from her fellow employees was critical, because it constituted the basis for the NLRB’s “concerted protected activity” assertions. Concerted protected activity is a key element of the National Labor Relations Act (NLRA), and the NLRB alleged AMR had violated those protections both with respect to its firing of Souza and generally through its social media policy.

(Sidebar: Here's an interesting and important question I've never seen addressed... If Souza's fellow employees joined in the disparaging dialogue, was there any disciplinary action taken against them? If Souza was fired for her comments, why weren't others?) 

Contrary to many characterizations, this case was not about “free speech” or about a single employee’s rights to say negative things about his/her employer and/or job. It was about protected speech, and protected speech under a specific set of circumstances. That’s not to say the case may not have broader implications, but those implications are certainly not as pervasive and threatening as many people have portrayed them to be.

Just as it’s important to put the original complaint in perspective, we need to do the same with the settlements. First, let me reiterate that these were settlements, not judicial rulings. As such, they do not establish any kind of formal precedent or create any legal mandate for an employer. It’s also important to reiterate that we have to separate the settlement between Souza and AMR from the settlement between the NLRB and AMR, and recognize that the only settlement that might have implications for employers is the one between the NLRB and AMR.

Reading and understanding the full wording of the NLRB/AMR settlement is critical. From the news release (emphasis mine):

• 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.

As noted by my emphases, the agreed-upon changes to AMR’s social media policies reflect nuances necessary to comply with the NLRA rather than a wholesale rejection or revision of existing rules. This isn’t a situation of “all bets are off,” where employers can’t restrict anything their employees might say – it’s a specific refinement that focuses on particular terms of employment. And even with respect to those terms, the “improperly” caveat still provides some leeway in terms of the kinds of comments employers can restrict.

 

What this Settlement Means

In my view, the agreement between the NLRB and AMR is reasonable. As noted by Gavin Appleby in the Littler blog post cited above, “it appears that unlike some employers, AMR did not include in its policy a statement that the policy would not be construed or applied in a manner that interferes with employees' rights under the NLRA.” If that is in fact true, then the policy could be construed to be in violation of federal law and in need of revision.

Given that there was no legal ruling, as well as the specific terms of the settlement, there’s no need for employers to panic. If you are responsible for the social media policy in your organization, you may want to follow the advice Appleby gave last fall, which seems even more sound today:

• A good middle course would entail adding language to the employer's social media policy explaining that the policy will not be construed or applied in a manner that interferes with employees' rights under Section 7 of the NLRA…. (A)dding such language would be wise given the uncertainties that lie ahead with the current NLRB and the increasingly work-related nature of social media.
• Also wise would be a careful analysis by the employer and its counsel of discipline issues that arise from social media and other speech-related situations that involve work and are concerted in nature.

Since it’s still early, I expect that more people will be weighing in on this settlement and its implications. I will update this blog post accordingly, particularly by including evaluations from attorneys. One issue I'm still a little fuzzy on is the implications of this settlement for both unionized and non-union environments. I've read a couple of assertions that the settlement doesn't impact non-union employers, but given the nature of the agreement, and the fact that the NLRA applies to all employers, I think all employers would be well-advised to pay heed and respond accordingly.

Please add a comment below or send an email to nlrb@sminorgs.net if you’d like to be notified when new material is added.

And, as noted above, I welcome comments from readers and invite people to use this post to create a dialogue on this settlement and its implications.

 

More on Social Media Policies

I am preparing a blog post about social media policies that will be published in the near future, followed by a white paper with more in-depth coverage. In preparation for the blog post, I’ve created a poll on LinkedIn to gather input from folks about the status of social media policies in their organizations. Click here to read the blog post that briefly describes the poll and provides a link to it, or click here to access the poll directly on LinkedIn. In addition to answering the poll yourself, I appreciate your sharing it with others in your network as well. Thanks!

If you’d like to receive the social media blog post as soon as it’s published, as well as other resources related to the organizational implications of social media, click here to subscribe to the SMinOrgs blog or click here to join the SMinOrgs LinkedIn group.

 

Comments

[Karin Wills]

Once again Courtney, Thank-you for using facts and common sense on this topic.

One thing I find interesting is that so far I have not read anything about the implications for future job prospects for an employee that engages in posting such comments regarding current or past employers. While they may have a 'right' to do so, they should consider how this might be viewed by potential new employers. Wrangling over ones right to behave in a certain manner is interesting, however, there are other factors to consider that could have unanticipated results.

[Courtney Shelton Hunt, PhD]

Thanks so much, Karin.

You raise a good point about the digital trails we leave behind and how they can come back to "haunt" us in the future. Some of the comments I read in response to the Yahoo News article I shared above raise points similar to yours.

I've also addressed the subject in my "Social Screening" white paper and follow-up post, as well as in the segment I participated in for a WGN show. Here are links to access each:

http://tiny.cc/SocialScreeningPaper
http://tiny.cc/SocialScreeningFU
http://tiny.cc/SMinOrgsTribU

[Seth Borden]

Courtney, thanks for adding your sober perspective on this issue. I think a lot of the shrill sensationalism is born, in part, of the wider public's lack of familiarity with traditional labor law.

Region 34's action after it investigates the more recent charge (34-CA-12906) filed against the bus company should provide further guidance to employers regarding the scope of a lawful social media policy.

Thanks again for your comment on our blog posts on this issue. We hope we meet SMinOrg's definition of a "reliable source"!

[Courtney Shelton Hunt, PhD]

Thanks for your comment, Seth.

The news about the latest charge is important, and Seth was the first person I saw mention it. Here's a link for folks to read the post Seth wrote on Labor Relations Today about the recent settlement and the new case: http://www.laborrelationstoday.com/2011/02/articles/nlra/nlrb-parties-settle-facebook-firing-case/.

[Courtney Shelton Hunt, PhD]

Here's a link to a detailed analysis of this case from an attorney at Fisher & Phillips LLP. Although this analysis was written before case was settled, it still provides valuable insights and guidance for employers. I've invited the attorney to provide an update.

http://www.laborlawyers.com/showarticle.aspx?Show=13632&Type=1119&cat=3386#page=1

[Courtney Shelton Hunt, PhD]

Here's a link to a related post I just published entitled, "Is the NLRB Turning up the “Social Media Heat” too High? No… Not Yet":

http://tiny.cc/SMinOrgsNLRBagenda

[Courtney Shelton Hunt, PhD]

I’ve just written a new blog post that provides more in-depth discussion of the practice of social screening, particularly by third-party firms. Here’s a link:

http://tiny.cc/SocialScreeningFacts