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Labor board rules ambulance company illegally fired EMT for posting criticism of boss on Facebook. Case is considered ground-breaking. Dave wonders how far chiefs can go to limit social media activity.

STATter911.com previous coverage of social media issues

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.

Here are some excerpts from the New York Times article by Steven Greenhouse, but I urge you to read the whole thing:

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.”

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  • http://firecritic.com Fire Critic

    “Dave Wonders…”

    Talking in the third person now huh?

    Dave, this is going to require thought for you to wonder…Good Luck!

    • dave statter

      Dave wonders if that’s the best Rhett can come back with after Dave’s slam dunk comment at FireCritic.com.

  • John

    This is not simply about limiting social media. This is about an employee who took it upon herself to post disparaging remarks about her employer and supervisor onto what is essentially a public forum. BTW, unless her page is set to private and every friend she has on their works within her department, it’s a public forum.

    People have been reprimanded and terminated for that for years before there was even an internet.

    This isn’t about free speech. The first amendment applies only too the government’s inability to restrict what an individual says. It has nothing to do with an employer.

    Yes, this is America and legally you can say what you want. However, everyone must understand that there are often repercussions to your actions.

    • dave statter

      But John, the NLRB says this speech, in person, or on the Internet, is protected.

      Statter

  • John

    I’ve gotta take the side of common sense, and that is that the NLRB is wrong in this case. I wish it wasn’t. I wish I was protected from any negative thing I could ever think to say, but I’m not.
    If this was a police officer or fire fighter making similar comments, you know full well he would be reprimanded up to possible termination. Because it is understood that as an employee of the city where he works, he represents that city both on and off duty, both on and off line. Well, as an AMR employee, you aren’t employed by the city. You are however a representative of the company for whom you are employed as well as the industry in which you are employed as a whole. We can’t expect to ever have the same respect and perks the FD and PD has without sharing the same responsibility and professionalism. And one step towards that is understanding that we as medics and emts have a duty to our profession, employer and community to hold ourselves in a respectful and responsible manner.

    Just to be clear, I’m not saying she should have been fired. That is not my call to make. But I do believe the company had a justified reason.

  • http://firecritic.com Fire Critic

    Dave,

    I will give you that it was a hilarious comment! I laughed like hell.

    As for this issue in the post, I think it is a great step forward in the issue of free speech or not.

    Don’t get me wrong, I wouldn’t bat an eye to any idiot that got fired after making disparaging comments about their boss on FB.

    Many have been fired for a lot less though and maybe this case study can help keep that from happening in the future.

  • Anonymous

    I for one think its great…we have the right to say what we want, thats what our country is based on anyone who doesnt want that can go to another country to live and see how much freedom you have.

    There are people who publicly criticize the President everyday, alot of them stand in front of the White House. There is one lady who lives in a tent and beats a drum all day. Try that in another country and you would be shot right there.

    I take a common sense approach as well, a boss at AMR or a Fire Chief is no where close to the President so if the President, Congress, and other political officials are not above criticism then the AMR boss, or Fire Chief is not either.

    If we are not allowed to criticize out leaders how can we ever hold them accountable.

  • Legeros

    Open question to all, is there an expectation that public safety professionals keep their mouths shut (to so speak) than other members/workers in other vocations. You can use whatever label you like. Demeanor. Poise. Verbosity.

    Would we have these same comments about criticism of a supervisor, outside our profession?

  • John

    @ Anon: AGain, freedom of speech in the 1st amendment is about the government’s restrictions. It has NOTHING at all to do with your employer. Criticizing, and saying “Look, AMR promotes crazy bitches” are two totally different things!

    @Legeros: I think we are, and should be, held to a higher standard. It is one of the responsibilities that comes with the job. Those who can’t accept that should probably move on. Now, that does not mean we do not voice concern or opinion. It does not mean we don’t correct and constructively criticize. Unlike most other lines of work, when we do something that negatively effects us, we are in effect negatively effecting our department and by extension, the entire profession. Every time you read an article about some slack off EMT doing something hair brained, that erodes the public trust in us. To me, and my standards, that is totally unacceptable.

  • HallwaySledge

    Very interesting article and ruling. My department has seen some recent issues regarding social networking sites and discipline has been handed down even for things that were not duty related. Example NOT from my department:

    Firefighter goes to a bachelor party. Firefighter is not wearing anything that identifies himself as a firefighter or his department. Pictures are taken at said bachelor party at a local gentleman’s establishment with some of the entertainers. No nudity, nothing illegal, just attractive young ladies and some guys celebrating. The bachelor posts the pics to his own profile and tags the firefighter in the pics. Said firefighter is successfully disciplined at work because under his info page he listed “Firefighter/Paramedic, XYZ Fire Department.”

    Where does it end? What can and can’t you do anymore as a firefighter, paramedic or police officer? It will soon be to the point where we will be scared to even tell people we are a part of the most honorable profession in the world. That is sad.

    • dave statter

      Of course that always went on. I imagine many chiefs as young firefighters did those same things. The difference now is that it all ends up on the web. But the question is as these things are tested what will the courts say about how far a chief or any other boss can go in limiting this activity. All very interesting.

      Statter

  • John

    I think that is a bit overboard. The FF in question should have the change the untag/remove the pics. However, this again comes down to not letting your page be open for anyone and everyone to view. That is simply asking for trouble.

  • mark

    Dave says: But John, the NLRB says this speech, in person, or on the Internet, is protected.

    True, but the NLRB is not the judicial system. Nor are they the final arbiters of the Constitution.

    Something some of you that think this is great may have not thought about, but what info are you allowed to give the media if you’re not the PIO? None, right?

    So, as John says, free speech is limited by employers. Legally. Free speech has been limited by SCOTUS.

    anon 9:20 says:
    There are people who publicly criticize the President everyday, alot of them stand in front of the White House. There is one lady who lives in a tent and beats a drum all day. Try that in another country and you would be shot right there.

    I take a common sense approach as well, a boss at AMR or a Fire Chief is no where close to the President so if the President, Congress, and other political officials are not above criticism then the AMR boss, or Fire Chief is not either.

    If we are not allowed to criticize out leaders how can we ever hold them accountable.

    Big, huge difference. The pres is OUR employee, he works for us. We don’t limit his free speech, do we? Same goes for Congress and other political officials. (I think they forget this waaaaaay too often.)

    Not sure where you’re reading that we can’t criticize our leaders, just not publicly. But hey, knock yourself out.

    • dave statter

      Mark,

      I understand your points but read my post again. My friend Kenny Cox spoke to a reporter on duty at the scene of a fatal house fire in DC and won his case. This is not labor law. And forget social media for a second, in some cases there may be old policies on talking to the press that might not hold up.

      Again, I am not a lawyer and there are a lot of nuances to these cases that I may not understand, but in two of three DC cases in federal court the firefighters won after being disciplined for speaking to reporters (one on duty and one off).

      The point is you don’t even need a reporter these days to tell the story. Anyone can do it with a blog, FB, Twitter.

      Again, I don’t have the answers. Just bringing up issues I believe departments should be thinking about.

      As always, thanks for your insight and contributing to the conversation.

      Statter

  • mark

    Dave, I wasn’t aware of the cases you are referring to so I stand (well, sit) corrected.

    And I wasn’t totally disagreeing with you, just looking at it from another aspect.

    While some regulatory agencies have been validated by SCOTUS (I would say wrongly, because laws are supposed to come from Congress, not an agency) this one has not….yet. It may or may not. I’m guessing that AMR will appeal this and possibly take it to the judicial system, unless this is some sort of binding arbitration. Which I don’t even want to attempt to understand.

    PS I’m not a lawyer either, but I did sleep in a Holiday Inn Express last night.

  • http://dawnmariesouza@yahoo.com Dawnmarie Souza

    While I have been advised to avoid interviews, I feel obligated to say something. First of all my page is private and I am a medic, not emt. The story has been greatly altered and I can only say please do not judge me until all the facts are out. Thank you.

  • MVCTOYS

    Hey Dave –

    I think you missed the part that the law in question in this case is for the PRIVATE sector – and may not apply to government.

    • dave statter

      No i didn’t. My point is the issues of freedom of speech that I cited do apply and may have impact on policies. But thanks, it is a good point.

      Statter

  • Outworld

    As I understand it, the employee made a comment that implied that the supervisor had a pysch history. That was the aspect that was ‘over the line’. We work in a PC environment that clearly states that employees MUST be protected by the company from hostile work environments and harrasment by co-workers. In my mind, that means that you do not get to post nasty comments ‘on the water cooler’. You may say them under your breath to a sympathetic co-worker, but you do not have the right to put them in writing and post them, on the walls, in the bathroom or on the internet…..