The NLRBs Non-Ruling in the Facebook AMR Case

The decision that labor lawyers, social media gurus, Constitutional scholars and fire lawyers have been patiently waiting for has finally been issued… sort of. The controversial case of Dawnmarie Souza, a Connecticut EMT who was fired by AMR in part because of work related information she posted on Facebook, has been settled. The settlement means there will not be a formal decision by the NLRB, and no possibility that the case will be brought to a court for an appeal. 

So where are we? Perhaps it would be best to look at the case in more detail to understand what many had hoped would be some clear guidance for employers and employees about the boundaries of social media use.

In 2009, AMR of Connecticut received a complaint about Souza’s work, and instructed her to prepare a response to the allegations.  She asked for a union representative to assist her, but that request was denied. After work, Souza went on Facebook to complain about what occurred, and was joined by other employees in an online discussion. Disparaging remarks were made, including the use of an AMR code word for a psychiatric patient to refer to her supervisor.

Like many employers, AMR had a strict prohibition against employees depicting the company in any way online, or discussing company business online without permission. A separate rule prohibited AMR employees from publically disparaging the company or its supervisors and managers. Souza was subsequently fired at least in part because of her online postings, although AMR alleged that the original complaint filed against her together with her overall job performance was grounds enough for her termination.

The union filed an unfair labor practice charge with the NLRB. After investigating the union’s claims, the agency filed a formal unfair labor practice complaint against AMR. While the refusal to grant Souza’s request for union representation during her disciplinary investigation was a clear violation of the Weingarten Rule, the NLRB also took the position that  AMR had “overly-broad rules … regarding blogging, internet postings, and communications between employees.”

The National Labor Relations Act (NLRA) prohibits employers from interfering with the exercise of their employees’ rights to engage in concerted activities.  Inherent in the right to engage in concerted activity is the right to engage in discussions about one’s workplace, working conditions and bosses. Lafe Solomon, the acting General Counsel to the NLRB, likened any attempt to limit discussions on Facebook to be the equivalent of limiting discussions around the water cooler at work.

Rather than go through a full blown hearing on the merits of the case, AMR chose to settle the case. As part of the settlement, AMR agreed to change both of its policies.  

That may be good news for AMR and Dawnmarie Souza, but it kind of leaves the rest of us in quandary. What restrictions can an employer place upon employee internet use? In particular, can an employer such as a fire department prevent an employee from identifying him/herself as an employee, and posting department related photos and information on his personal web spaces? Some may ask why would such a policy be a good idea?

If you look at the headlines that have been made just over the last year – there are dozens of cases where fighters have making career ending internet blunders. These cases have hurt the firefighters themselves, damaged the reputations of their departments, and quite often hurt third parties, including co-workers, fire/accident victims and their families. Fire departments need to provide CLEAR guidance to employees about what is and is not acceptable online behavior in an effort to help employees steer clear of trouble.

Rather than get into content based regulation of what types of information is or is not acceptable to discuss online, a safer and saner approach (IMHO) is to tell firefighters  – look, just do not associate yourself online in any way with this fire department. That way the content of what you have to say is of little to no concern to us.

However, when firefighters create web sites and Facebook pages that have their fire department name and  logos, as well as photos, station locations, information, incident details, and in some cases live streaming radio broadcasts on them, then the content of what a member says about virtually anything can easily become associated in the public’s mind with the fire department. In fact with some personal web sites I have seen, there is a risk that a member’s web site could be mistaken for the fire department’s official web site, and that the member may become viewed as a spokesperson for the department. In such a case virtually anything that a member posts reflects publically on the fire department.

Fire department leaders have an obligation to their members, to their department, and to the public, to avoid these types of situations from occurring.  However, the position of the NLRB in the AMR case ignores this reality. For an NLRB lawyer to equate comments on the internet with discussions around a water cooler shows a profound lack of situational awareness of the position that fire department and other employers find themselves.

Far from being a private discussion between coworkers around a water cooler, discussions online are more like discussing things on television where thousands if not millions of people could be watching. Unlike a private conversation, internet communications  create an electronic record when something is posted. The potential for the communication to be spread virally to others could not be more different than a private discussion.

Personally, I was hoping the matter would end up in court so that the issues could be more fully considered. However, there are times when I wonder if the situational awareness problem that Lef Solomon has, might also cause a judge to miss the big picture. Can you imagine a judge tolerating court personnel engaging in online discussions every night about what occurred in court that day, or their true feelings about the judge, or the parties in the case  – there for the public and the parties in the case – to read? There should not be two standards, one for courts and one for the rest of us. The issues are quite similar and have to do more with where people choose to say things than what they have to say.

Again, fundamentally I see this as a question of leadership – how can a fire chief or fire service leader best lead – best guide – best advise his/her personnel in this challenging time – to help protect them, the department and the public.

So what is next? Perhaps another case will come along soon that will allow the issue to be more fully discussed and decided.

Can Facebook get you fired?:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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