In our recent discussions about first responders and social media I had cautioned that chiefs need to make sure that their policies to address these issues aren’t infringing on the rights of their employees. Here’s a good reason why. The New York Times reported yesterday the National Labor Relations Board is accusing an ambulance company of illegally firing an employee who used Facebook to criticize a boss. Labor lawyers consider this a ground-breaking case because, for the first time, the “board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.”
The complaint is against American Medical Response of Connecticut. While it doesn’t involve patient confidentiality, to me, the most interesting part is that NLRB is saying rights already established extend to Facebook or other social media. While I am not a lawyer and don’t play one on TV (these days I don’t play anything on TV) you have to wonder how policies already established and those being considered will hold up not just in the labor arena, but also in the area of protected speech in general.
I think back to at least three freedom of speech lawsuits the District of Columbia was on the losing end of toward the end of the last century. The oldest one is a 1970s case where Firefighter Kenny Cox was disciplined for criticizing the department’s rotating closure policy while on duty talking to a reporter at the scene of a fatal fire. DC firefighters, with the help of IAFF Local 36 and the American Civil Liberties Union, also prevailed in cases where chiefs punished them for a political cartoon posted at a firehouse and for doing a TV interview, off duty, about inadequate supplies for infectious disease control.
So, can a chief completely ban the use of social media while on duty? Can the chief limit what a first responder writes on Facebook while off duty? Are their parallels between what the NLRB is saying from a labor standpoint and previous rulings about First Amendment rights?
I don’t pretend to know the answers to these questions, but these are things I do think about and hope you are too.
Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
The labor board said the company’s Facebook rule was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves.
Moreover, the board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”
The board’s complaint prompted Morgan, Lewis & Bockius, a law firm with a large labor and employment practice representing hundreds of companies, to send a “lawflash” advisory on Monday to its clients, saying, “All private sector employers should take note,” regardless “of whether their work force is represented by a union.”
The firm added, “Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would ‘reasonably tend to chill employees’ ” in the exercise of their rights to discuss wages, working conditions and unionization.
American Medical Response of Connecticut denied the labor board’s allegations, saying they were without merit. “The employee in question was discharged based on multiple, serious complaints about her behavior,” the company said in a statement. “The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”