Are employees entitled to trash the boss on Facebook?

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American Medical Response, an ambulance service in Connecticut, fired one of its emergency medical technicians, Dawnmarie Souza, after she posted disparaging comments about her supervisor on Facebook. It might seem like common sense not to trash one's boss on a social network, but the National Labor Relations Board has filed a complaint on Souza's behalf, charging that she was wrongfully terminated. The outcome could have major implications for corporate social media policies and privacy rights.

American Medical Response had a policy in place for Internet posting, and it includes a provision banning employees from making disparaging comments in discussions about the company or supervisors. It also includes a prohibition on employees posting depictions of the company without first getting permission.

In the NLRB's view, however, these provisions are not legal as they interfere with the employee's right to engage in "protected concerted activity." Souza's Facebook remarks, according to the NLRB's complaint, fall under "concerted activity," which is protected under federal law to safeguard the right to organize labor and unionize. In other words, Souza's remarks on the social network were akin to comments workers might make to each other when standing around the water cooler. The case is scheduled for a hearing before an administrative law judge Jan. 25, 2011.

The legalities surrounding employees' rights and social networking are pretty much unchartered territory, and this case is being watched carefully for the precedent it sets. The case comes down to whether or not Souza's postings constitute "concerted action," write Brian Elzweig, assistant professor, and Donna K. Peeples, associate professor at Texas A&M University, in a post at HarvardBusinessReview.

According to Elzweig and Peeples, the main questions in the case are:

  • "Was the intent of the posting to elicit comments from other employees (rendering it a protected concerted action) or just to vent?"; and
  • "If the intent was just to vent, was this Facebook posting public (like a letter to a newspaper) or private (like a conversation)?"

The question of privacy rights in the social media context is also yet to be fully unexplored. Whether Souza's posting was protected by the Fourth Amendment may depend on her Facebook privacy settings and how the comment was posted, Elzweig and Peeples write. 

"If it was posted without privacy settings enabled, then it would be available to the general public, so there it would be hard to claim any legal privacy," they write. "The expectation of privacy would also hinge which of a Facebook user's 'lists' were allowed to read it. If a broad group people would have access, it would be hard to claim that the information was intended to be held private."

For more:
- see Brian Elzweig and Donna K. Peeples' post at HarvardBusinessReview

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