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Antisocial networking can backfire

An ongoing legal battle over whether a woman was improperly fired for criticizing her employer on Facebook will shed light on just what the boundaries of online communications are.

Employment lawyers say there are issues involved that won’t be resolved quickly – or easily. But at its most basic level, the case raises a high-tech version of the question of how to define an employee’s criticism of a company.

The National Labor Relations Board (NLRB) has claimed that American Medical Response of Connecticut Inc. illegally fired Dawnmarie Souza from her job as an emergency medical technician late last year after she criticized her supervisor on her personal Facebook page from home, then traded Facebook messages about the negative comments with other employees.

The NLRB stated that the Souza’s postings constituted protected concerted activity, in accordance with Section 7 of the NLRA, and that the company’s social networking policy was overly broad. A hearing before an administrative law judge is set for Jan. 25.

One of the potential defenses for the employer against the NLRB claim is that the comments were made solely on the employee’s behalf, rather than as a voiced concern for fellow workers, said Quarles & Brady employment attorney Sean M. Scullen.

Even if the posts are deemed concerted activity, Scullen said the courts will still have to determine when employee criticisms and complaints cross over into defamatory comments about an employer.

Should the case result in greater leeway for employees to post negatively about employers, he said that will force companies to be more specific with their social networking policies to protect themselves.

“There is a real risk of the balance tipping too much in favor of employees,” Scullen said. “Companies would be subject to disparaging or defamatory comments without any recourse.”

While a company is within its rights to monitor employee posts and a growing number have social media polices written into their handbooks, there aren’t clear-cut boundaries as to when workers cross the line with online comments.

“There is this tension between concerted activity, which argues for freedom of expression in certain ways, and the legitimate interest of employers to protect their good name,” said attorney Bradden C. Backer of Albrecht Backer Labor & Employment Law.

He said someone who rails against adverse working conditions likely wouldn’t be subject to discipline, because the comment falls under the protection of the National Labor Relations Act (NLRA).  But an employee who simply posts, for example, “this company sucks” could face termination because the comments paint the business in a negative light, with no supporting context.

Backer has yet to handle a case in which an employee has been fired because of a social media posting, but he has counseled employers on their rights to regulate postings. A key distinction for current protection is whether the person posting is doing so exclusively for their benefit, or for the benefit of others.

“Many employers are surprised, as nonunion companies, to learn that the NLRA has anything to do with them when in fact it does,” Backer said.

Only government employees have First Amendment protection, and Backer said current laws tend to favor employers in their ability to punish employees for negative posts, often because social networking policies are broad enough to encompass almost anything that reflects poorly on the company.

Godfrey & Kahn employment attorney Daniel J. Finerty said posting on Facebook is comparable to most other circumstances in which someone would say or write something negative about a job or employer.

He noted that an employee’s comments online that his or her supervisor is “incompetent” typically raises the same issues as the comments raise around the water cooler.  However, while memories regarding a water cooler comment by a co-worker may fade, social media postings may not fade away as easily.

“To suggest that a Facebook posting is different than a face-to-face discussion is like saying that one should not be held accountable for phone conversations or e-mails,” Finerty said. “In most circumstances, users set up a Facebook page with an intent to communicate. While the same personal accountability rules may not be followed in some cases with regard to those communications, this does not necessarily change the communication itself.”

In his experience, Finerty said the notion that venue creates a difference is reflected in a common misconception that a level of privacy exists in online communications that may not exist in normal conversation.

An online posting and a “water cooler” conversation are similar in that both have the potential that a third party could be listening in, but even the highest privacy settings on Facebook still allow for someone to search and view information about a person, such as a photo or other personal attributes.

In a face-to-face conversation, there is a greater sense that it is just between the people talking, Finerty said, whereas the limits of online privacy are largely undefined in that regard.

Plaintiff’s lawyer Randy T. Enochs said that people should be allowed the same right to criticize on Facebook as they would through a published editorial.

He said content, not venue, should be the determinative factor in deciding whether an employee’s comments warrant reprimand.

“It’s just a different forum,” Enochs said. “Protected speech needs to be carried over into online social human interactions.”

Scullen agreed that what is said is more important than where it is said for employers to decide whether to take action.

At the same time, he said employers have a greater practical interest in social media interactions because Facebook posts are available to a larger audience than a water cooler conversation between a half-dozen employees.

But legally, he said there is little difference between the two.

“If someone places posters or makes an editorial comment in public which contains the same information as an online post,” Scullen said, “I’m not sure the law draws a distinction.”

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

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