The First Facebook Firing Case under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media
O'Brien, Christine Neylon, Suffolk University Law Review
In the first labor law case of its kind in the United States, Region 34 of the NLRB issued a complaint against AMR. The complaint alleged AMR's firing of Emergency Medical Technician (EMT) Dawnmarie Souza for posting derogatory comments about her supervisor on the social media website Facebook violated sections 7, 8(a)(1), and 8(a)(3) of the NLRA. (2) The Board alleged that the employer threatened Ms. Souza with discipline for requesting union representation at an investigatory interview that she reasonably believed could lead to discipline, thus interfering with her Weingarten right. (3) Under the rule in Weingarten, an employer violates section 8(a)(1) of the NLRA when it threatens to discipline an employee for requesting a union representative in this context. (4) In addition, a violation of section 8(a)(3) of the NLRA may occur where an employer discriminates against an employee who exercises her Weingarten right if the employer does so to discourage membership in a labor organization. (5) An employer is not required to acquiesce to a Weingarten request and may instead investigate matters without the interview. (6) In the AMR case, however, Ms. Souza was allegedly required to complete an incident report without the assistance of her union representative despite her Weingarten request, and she was suspended and terminated shortly thereafter. (7)
According to the NLRB, AMR's blogging and internet-posting policy was also overbroad, constituting a violation of section 8(a)(1) of the NLRA because it unlawfully infringes on section 7-protected concerted activities. (8) Shortly after the Board issued a press release on the case, news of the EMT who was terminated from her employment for posting negative comments about her supervisor on Facebook went viral due to its significant implications for workplace social media policies. (9) Section 7 protects all employees who are covered by the NLRA, not just unionized employees, and thus the case has broad implications for employers. (10) In light of the NLRB's attention to this issue, companies need to be cautious as they promulgate and enforce electronic communications and social media policies to ensure they do not infringe on employees' section 7 rights. (11)
The emergence of social networking means that people do all kinds of things on user-generated content websites that they used to do very differently. Workplace communication has evolved to such a degree that one can now say email supplants much face-to-face communication in many workplaces. Additionally, new media are arriving and growing even as we tweet. While the NLRB has been slow to adapt its historic rules to incorporate legal requirements for the commonplace and necessary communication medium of email in the workplace, it is likely that this will change under the new Obama Board. (12) Social networks have evolved and expanded over the past decade. Their reach is instantaneous and they provide a nearly unlimited ability to reach virtually the entire world. At the moment, it seems as though the current NLRB is poised to adapt existing legal doctrines to craft new rules and remedies regarding employer rules and restrictions concerning employee use of these social media sites.
Employers clearly have rights at stake with respect to employee communication on email and social media. These rights include protecting their reputation, image, culture, and preventing disclosure of confidential information. Other major employer interests are to avoid liability for harassment and noncompliance with laws of all types, including discrimination, privacy, etc. Correspondingly, employees have the right to speak and connect on their own time and on their own devices as long as they do not violate the employer's legitimate business interests. It is quite possible that the newly constituted NLRB may find that employees have the right to speak, email, and engage in social media on nonwork time. …