It all began with a nasty Facebook post. Dawnmarie Souza, an employee of American Medical Response of Connecticut (AMR), wrote scathing remarks about her supervisor on Facebook out of frustration.
When her employer learned of her comments, Souza was terminated from her position as a response worker. She sued her former employer through her union relying on the National Labor Relations Act (NLRA) of 1935.
Under the NLRA, certain types of speech are classified as “protected concerted activities” related to labor unions. This speech includes any discussion of the “terms and conditions of employment with others” because “employees have the right to organize labor unions and to engage in concerted activities for the purpose of collective bargaining or other mutual protection.”
Prior to Souza posting her Facebook comment, a customer had complained about her performance on the job leading Souza to request union representation, after her supervisor asked her to prepare a report about the matter. Souza’s Facebook post was related to her supervisor denying her request for union representation and other conditions of her employment.
Compared to other cases where employees have posted negative comments about their supervisors on Facebook, this case differs because Souza’s posts were deemed related to the her workplace conditions. However, AMR fired Souza, because they believed she violated their internet policy, which prohibited employees from voicing opinions about the company and making certain comments on Facebook “without the company’s permission.”
At a preliminary hearing, the National Labor Relations Board (NLRB) determined that AMR’s internet policy was “overly broad” and interfered with employee’s rights to participate in “concerted activities,” such as discussing employment concerns with co-workers. Since Souza’s comments were characterized as concerning her conditions and terms of employment and garnered the responses of her co-workers, the NLRB said that AMR wrongfully terminated Souza.
Interestingly, the NLRB does not discuss what the outcome of the case would have been had Souza’s comments omitted discussion of her employment workplace, and whether they would likely have been considered defaming towards AMR. Further, the NLRB does not examine why and how AMR discovered Souza’s comments.
Understandably, the NLRB only concerns itself with employee rights violations and labor disputes, but since the National Labor Relations Act was created over 70 years ago, perhaps, labor laws need to be updated and company internet policies need to be further scrutinized. Since the Souza case was settled, the NLRB has not fully established a precedent for negative employer reviews on Facebook, nor the “research,” or “spying” conducted to find such negative comments.
Although freedom of speech is protected under the First Amendment, not all forms of speech are given the same levels of protection. Moreover, most, if not all employment agreements, are based on at-will termination, where workers can be fired for almost any reason at all with the exception of discrimination.
Souza would have likely won her case based on the content of her speech on Facebook. Still, because her case was not adjudicated, employees everywhere continue to tread a fine line, when making comments on Facebook, not knowing whether their employers read their posts, but assuming they do.
Declan Mccullah. “If Your Boss is Jerk, Dare You Announce it on Facebook?” CBSNews.com.
Julianne Pepitone. “Facebook Firing Test Case Settled Out of Court, ” CNNMoney.com.
Melanie Trottman. “Facebook Firing Case is settled,” WSJ.com.
Press Release. “Settlement reached in case involving discharge for Facebook comments,” NLRB.gov.