NLRB Files Complaint Alleging that Use of Facebook May Be Protected Activity
On November 3, 2010, Legal Times reported that the National Labor Relations Board's (NLRB) Hartford office filed a Complaint against American Medical Response of Connecticut, Inc. alleging that the ambulance service illegally terminated Dawnmarie Souza, for posting negative comments about her supervisor on her personal Facebook page. The NLRB contends that American Medical Response wrongfully denied Ms. Souza her union representation during the investigatory review, and that the NLRB was charging that the company “maintained and enforced an overly broad blogging and internet posting policy.” The NLRB, in their press release, stated that her supervisors “threatened her with discipline because of her request for union representation….Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee.” Ms. Souza was fired three (3) weeks later.
Today, Molly DiBianca, in her blog, The Delaware Employment Law Blog, reported that an employee and her supervisor were Facebook friends. After the employee filed a charge of discrimination with the EEOC, the supervisor unfriended the employee. When the employee later added a claim for retaliation, one of the facts supporting the claim was the fact that the supervisor unfriended her. As Ms. DiBianca wrote, "The employee felt the "unfriending" was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context. Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint."
Practice pointers. With the NLRB entering the social networking fracas, there is one more governmental agency for employers to be concerned with when dealing with social networking in the workplace. When considering whether to implement or change a social networking policy, employers now need to consider the concept of "protected activity" as viewed by the NLRB.
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