In previous articles, I have addressed some of the unexpected sources of liability that can stem from overbroad social media policies. Recently, the National Labor Relations Board (NLRB) added one more risk to the parade of nasties, as reported on by our sister site, EMS1.
Departments should avoid overbroad policies and those that make distinctions based on subject matter or viewpoint.
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On October 27 last year, the NLRB brought a complaint against EMS giant American Medical Response Inc., stemming from the discharge of an EMT represented by the International Brotherhood of Teamsters. Late last month, under a settlement agreed with the labor board, AMR agreed to change its blogging and Internet policy that barred workers from disparaging the company or its supervisors.
The complaint alleged that the employee was fired in violation of the National Labor Relations Act (NLRA) after she posted disparaging remarks about a supervisor on her Facebook account outside of working hours.
The disparaging remarks were allegedly in response to the supervisor's denial of the employee's request for union representation in preparing a response to an incident report.
Several of the employee's coworkers commented on the disparaging post by posting their own comments to Facebook. Further, the complaint quotes directly from AMR's employment policies and alleges that they violate the NLRA.
The NLRA prohibits employers from interfering with an employee's right "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." To qualify as concerted activity, employee conduct must initiate, induce, prepare or relate to group action for the improvement of working conditions.
Mere griping about a condition of employment is not protected, but when the griping coalesces with expression inclined to produce group or represented action, the activity becomes protected. NLRA protections extend to both union and nonunion employees.
In order to protect the full expression of concerted activities, courts have extended protection to intended contemplated or even referred to group action.
Similarly, recent NLRB precedent found employment policies that tend to chill employees' exercise of their right to concerted activity violate the law even if the company never enforces such policies and the policies were not understood by employees.
Since the AMR case reached a settlement prior to the scheduled hearing, we do not have the benefit of the judge's analysis of the claims. Notwithstanding, the complaint itself has several important implications for fire and EMS organizations.
1. It suggests that the NLRB treats discussions on Facebook like discussions around the water cooler. According to the NLRB, the AMR complaint is not based on any novel legal theory but is simply an obvious extension of the current law.
Thus, just as departments must be cautious not to interfere with employees' concerted activities in the workplace, they must tread lightly in dealing with employee activities in social media channels.
2. The complaint serves as a reminder of the NLRB's position that employment policies themselves can violate employees' right to engage in concerted activity. Oftentimes, departments can remedy overbroad policies by not applying them in certain situations.
The NLRB's position does not allow departments any room for error but attaches liability with the publishing of the policy itself.
3. The complaint may suggest that social media policies will be the subject of enhanced NLRB scrutiny. NLRB proceedings can be both expensive and embarrassing. As such, departments should consult an attorney or human relations professional prior to terminating any employee.
Moreover, in light of liability for policies, even unenforced ones, departments should proactively and aggressively review their employment policies and SOPs with an experienced attorney to reduce the risk of NLRB attention.
This article is no substitute for competent legal counsel licensed to practice in your state.
About the author
Edward S. Robson, Esquire, EMT-B, is the managing member of Robson & Robson, LLC, a law firm located just outside of Philadelphia. Mr. Robson has represented volunteer fire and ambulance companies in a variety of matters, including First Amendment issues, civil rights, employment, contract negotiations, internal governance, personnel policies, SOP's and equipment purchases. He has volunteered as an EMT since 2003 and currently serves as a member of the board of directors of a large suburban fire company. Mr. Robson graduated with honors from both Villanova University and Villanova University School of Law. He can be reached at Edward.Robson@FireRescue1.com or 610 825-3009.
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