Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

On December 7, 2010, we blogged about In re American Medical Response of Connecticut, Inc., a case in which the National Labor Relations Board (“NLRB”) filed a complaint against ambulance company American Medical Response (“AMR”) alleging that AMR’s termination of an employee who posted negative remarks about her boss on her Facebook page violated the National Labor Relations Act. In its Complaint, the NLRB also alleged that AMR’s blogging and Internet policy was overly broad and thus unlawful.

The NLRB recently issued a press release announcing its settlement with AMR and stated:

Under the terms of the settlement…the company agreed to revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions….

Employers should take note of this settlement as its provides some guidance regarding social media policies and how they must be drafted to withstand the NLRB’s scrutiny. After In re American Medical Response, it is at least clear that employers may not muzzle employees, either in the office or on social media, as “free speech” is alive and well in the workplace.
 

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In the most recent chapter on social media and the law, the National Labor Relations Board (“NLRB”) recently filed a complaint against American Medical Response of Connecticut, Inc. (“AMR” or the “Company”), claiming that the Company violated federal labor law when it disciplined and then terminated an employee who posted disparaging remarks about her supervisor on her Facebook page.

In In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), the NLRB filed an unfair labor practice charge against AMR, asserting that the Company’s suspension and termination of an employee who posted disparaging comments about her supervisor violated Section 7 of the National Labor Relations Act (“NLRA”), which protects unionized and non-unionized employees’ rights to “engage in concerted activity.” According to the Complaint, the employee requested union representation in response to a performance critique and the supervisor then allegedly threatened the employee with discipline. Later that day, the employee posted disparaging remarks on her Facebook page about her supervisor from the employee’s home computer.

AMR suspended and then terminated the employee because she allegedly violated the Company’s social media and internet policies by disparaging her supervisor on Facebook. The Complaint alleges that the Company’s social media policies were too broad because they interfered with employees’ rights to communicate with one another about the terms and conditions of employment and, therefore, violated Section 7 of the NLRA. While this is the first unfair labor practice complaint relating to an employer's social media policies, many do not believe it will be the last.

The message for employers, both union and non-union, is clear. While the law in this area is far from settled, employers should review their social media policies immediately to ensure that they are not broader than necessary and thus susceptible to an unfair labor practice charge or other claim. In addition, employers are well advised to use caution before discharging or disciplining any employee based on activity or comments made by employees on social media sites. As evidenced by the Pietrylo and Stengart cases, about which we recently blogged, disciplinary action related to employees’ arguably private use of technology may also lead to claims for, among other things, violation of privacy and violation of applicable wiretapping and stored communications laws.

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In City of Ontario v. Quon, decided on June 17, 2010, the United States Supreme Court held, for the first time, that the City of Ontario’s review of a police officer’s text messages was reasonable and, therefore, did not violate the Fourth Amendment. In Quon, Jeff Quon repeatedly exceeded the character limit on his work-issued pager. The City therefore audited his text messages, and uncovered hundreds of personal messages, some of which were sexual in nature. Although the Court declined to address whether Quon had a reasonable expectation of privacy in his text messages, the Court held that, even if he did, a public employer may reasonably search an employee’s property at work where the search is non-investigatory, work-related or incident to an investigation of work-related misconduct, without violating the Fourth Amendment.

Here, the Court found that the search was reasonable and “justified at its inception,” as the City’s review stemmed from an investigation as to whether the character limit was sufficient to meet the City’s needs. In addition, the City’s review of Quon’s text messages was reasonable as an “efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” Finally, the Court found that the review was not “excessively intrusive” because the City only reviewed two (2) months of messages, although more were available.

As with cases arising in the private sector and impacting issues of technology in the workplace, Quon also provides several instructive lessons for employers. First, employers must be reminded that it is crucial to develop and distribute comprehensive workplace communications policies, which make clear that employees’ communications through technology are not private. In addition, employers are well advised to only review such employee communications where there is a legitimate, work-related reason to do so.

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