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Settlement in Facebook case raises more questions than it answers

By Fran Haas

The National Labor Relations Board (NLRB) settled the first case in which it took the position that an employee's criticism of his or her boss or workplace on a social networking site is a protected activity and that employers cannot punish workers for making these statements. As we mentioned in our blog post a few months ago, the NLRB filed suit last fall against an employer, American Medical Response, Inc. (AMR), which terminated an employee, Dawnmarie Souza, for criticizing her boss in an expletive-filled Facebook post. AMR contended that Souza had violated its social media policy, which forbade an employee from depicting the employer "in any way." The NLRB alleged that such comments constituted "protected concerted activity" under the National Labor Relations Act (Act), and that the termination had violated Souza's right to discuss work conditions.

As a condition to settlement, AMR agreed to revise its social media policy to allow its employees to discuss their workplace on social media websites, even if the discussion portrays AMR or its employees in a negative light. The revised policy does not go so far as to prohibit AMR from taking action when employees use unprotected speech, such as libel or imminent threats, or when the employee threatens to disclose confidential, proprietary, or trade secret information. The other part of the settlement agreement, which relates to the reasons for Souza's termination, remains confidential.

Employers should understand that the fact an employee makes a work-related comment on the internet rather than in the workplace is irrelevant for purposes protected speech under the Act. If an employee makes a comment on Facebook that would be protected if made in the workplace, it is likely protected under the Act. Accordingly, employers should take care to draft their social media policies narrowly to allow employees their full right to free speech.

Although this settlement provides employers with some guidance on how to draft a social media policy, it raises more questions than it answers. For instance, to what extent may an employer restrict an employee from posting comments that are disloyal to the employer? Does an employer have any recourse for an employee who does not "post" a comment, but indicates that he or she "likes" a negative comment about the employer posted by a non-employee? Other questions about this area of law, which predated this case, will continue to create confusion and uncertainty for employers. For instance, employers regularly face the difficult task of determining whether an employee's negative statement about work has crossed the line from hyperbolic criticism to misrepresentation. The advent of workplace discussions on Facebook will cause issues like this one to arise more frequently.

Although the outcome in this case has a narrow binding legal impact, employers should heed its warning to carefully examine policies that regulate an employee's use of social media and tread carefully in regulating employee speech on social media websites. If you have any questions about this case or your company's policy on social media, please contact us at (515) 283-3100.



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