Social media: the digital water cooler. And what your employees say about you or your company online may be protected speech, as has been shown in some of the headline-making cases that follow.
One now-famous case between employee and employer resulted in a lawsuit against American Medical Response of Connecticut, brought by the National Labor Relations Board. The suit claimed AMR employee Dawnmarie Souza, an ambulance driver and Teamster, was unjustly fired and denied union representation after she allegedly mocked her supervisor using obscenities on her Facebook page. She purportedly called her supervisor a "d–k" in one post and "a scumbag" in another, though the actual postings were not made public.
Souza won the case, with the NLRB ruling that the termination violated the National Labor Relations Act, which allows employees to discuss the terms and conditions of their employment with co-workers and others.
Recommended For You
The NLRB also said AMR's Internet policy was too broad and "contained unlawful provisions." The board pointed out a specific AMR rule that prohibited employees from speaking negatively about the company or its employees on the Internet. As a result, AMR said it would revise its policies.
Suzanne Lucas, aka "The Evil HR Lady," disagreed with the ruling, writing in a blog post that employees "have the right to free speech, but I also believe that companies should have the right to terminate people who use that speech to denigrate the company."
Lucas thinks the employee ought to have been fired, writing, "Companies need employees they can trust to make good decisions. If you lack the critical thinking skills to say, 'Hmmm, if I post that my boss is a jerk, my boss just might find out about it,' then you probably lack the critical thinking skills to do your job."
Another NLRB case issued last week alleges that a Chicago-area car salesman was wrongly fired after criticizing on Facebook the "lame food and drinks" provided by his dealership at their event promoting a new BMW model. The postings, complete with photos, disapproved of his dealership's tacky choice to serve hot dogs and water bottles alongside promotion of such a fancy car.
The NLRB counsel argued once again that the Facebook posting is "protected concerted activity." A ruling is yet to be made.
In Massachusetts, a firefighter was fired for posting off-putting work-related comments on Facebook. He allegedly verbally attacked his bosses and co-workers, posted "homosexual slurs" and complained about having to work on a holiday. Several co-workers who saw the comments complained to management.
The employee, Richard Doherty, said that his comments were taken out of context and that he thought his comments settings were private. His attorney says that Doherty "was exercising his First Amendment right to state that he thought he was being treated poorly by these individuals or didn't like the way they were doing things."
The fire station's statement defended the firing, claiming that the employee's comments disparaged the entire organization.
According to a New England Cable News story, union representatives believe Doherty was "unfairly targeted" and that the termination was "improper." Doherty is considering various litigation options, according the NECN.
In a less extreme case, posting on Facebook that her job was "boring" got British teen-ager Kimberley Swann fired. In a memo, her employer, Ivell Marketing & Logistics of Clacton, U.K., said, "Following your comments made on Facebook about your job and the company we feel it is better that, as you are not happy and do not enjoy your work we end your employment with Ivell Marketing & Logistics with immediate effect."
Stephen Ivell, the owner, called Swann a "lovely girl" but said that the company made the right decision.
Disparaging online comments about future bosses can hurt careers, too.
Last year a Twitter user tweeted, "Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."
As luck would have it, a Cisco employee was in the midst of his or her followers and tweeted back, "Who is the hiring manager? I'm sure they would love to know that you will hate the work."
What should employers do?
These kinds of cases have many employers wondering if they should redefine their current social media policies that forbid making negative comments about anything work-related. "Arguably such policies are now illegal under the NLRB's interpretation of applicable law. And remember, this applies to all employers, whether unionized or not," said Christopher McKinney, a labor and employment lawyer.
Having a policy that prohibits employees from saying anything bad about their business or co-workers on social media could backfire, as such a policy could violate the National Labor Relations Act. "This is an area employers need to be mindful of, that they do not have the ability to completely restrict what their employees do on social media sites," said employment attorney Douglas J. Miller in an interview with Atlanta-based news site Patch.
Lucas recommends staying off of employees' social media pages. Not because they won't find things; precisely because they will. "There are things out there about your employees that you don't want to know. Even though you can legally fire people easily, few companies allow you to actually do that. And there are lots of unemployed lawyers who would be happy to take your employee's case," she says.
What are your thoughts? Use the comment forum below to add your insight.
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
