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Can You Post & Get Away with it?


Can EMS employees be prohibited from bashing their supervisor on Facebook (FB)? That's one of the issues in a complaint filed by the National Labor Relations Board (NLRB) against American Medical Response (AMR) of Connecticut, where it's alleged that AMR terminated an employee who posted negative remarks about her boss on her personal Facebook page while off duty.

This case involves the arcane 1935 union protection law, the National Labor Relations Act (NLRA). Section 7 of that act protects the rights of employees to organize and form unions, and the right to engage in "other concerted activities for mutual aid or protection." That could potentially include activity while both on duty and off duty. What matters most is what the employer does in response to the protected activity (i.e., suspension or termination). The NLRA applies to employees in most private-sector workplaces, including EMS agencies, even where they're not currently unionized. Public sector employees have similar rights under state labor relations laws.

The ambit of Section 7 is very broad, but it doesn't give employees the unfettered right to unilaterally lash out against a supervisor or employer in a disparaging way. According to an article in the New York Times on Nov. 9, one of the alleged posts on Facebook by the AMR employee was this: "Love how the company allows a 17 to become a supervisor"—17 is the company lingo for a psychiatric patient—along with some other vulgarities and ridicule of the employee's supervisor.

Should employees be protected by the law when they disparage a supervisor and call him/her a mental patient in this fashion? We don't think so. In addition, the complaint against AMR goes deeper than the FB posting, involving other alleged unlawful activity of AMR and misconduct of the employee.

According to the Times article, AMR claims the employee "was also held accountable for negative personal attacks against a co-worker posted publicly on FB" and "believes that the offensive statements made against the co-workers were not concerted activity protected under federal law." (Keep in mind this is just a complaint, and no hearing has yet been held on the merits of the allegations.)

Concerted Protected Activity
So, just what is "concerted protected activity?" To be protected under the NLRA, the activity must be "concerted," or undertaken together by two or more employees or one employee on behalf of the other. It's key to understand that the activity must have some relation to group action in the interests of other employees. (See, Hardin and Higgins, Developing Labor Law, Fourth Edition, pp 77–81, BNA Books). Firing off a unilateral gripe about one's personal issue with a supervisor (like a post on your FB wall) would not fit that definition.

Even the NLRB itself has said so in several past cases–public venting of a personal grievance was found not to be concerted activity in one case; individual protests against work assignments were not concerted activity in another. And even individual griping about disputed overtime was not concerted activity in another.You might be wondering, how can a unilateral blast on Facebook be "concerted?" True, a unilateral posting may "get the ball rolling" with posts from others, but we think that at a minimum there would still need to be a clear relationship between the employee and the interests of the bigger group of employees in that initial posting, to be afforded protection under the NLRA.

Mutual Aid
Second, if it's indeed concerted activity, then that activity must be for "mutual aid and protection" of the employees. That embraces expressions of common cause among employees, such as legitimate statements aimed at improving the terms and conditions of employment for all employees. It doesn't protect concerted activity that is "indefensibly disloyal," such as false statements about a supervisor or disparagement of the employer's business activities.

Interestingly, on Dec.4, 2009, the NLRB's General Counsel issued an advice memorandum regarding whether an employer's social media policy could reasonably be construed to "chill" protected Section 7 activity, as in deter employees from lawfully exercising their rights under the law.

The policy of the employer (Sears Holdings) stated that the intent of the policy was "not to restrict the flow of useful and appropriate information, but to minimize the risk to the company and its associates." The company policy added that in order to maintain the company's reputation and legal standing, that among other subjects, employees couldn't make statements that involved "the disparagement of company or competitor products, services, executive leadership, employees, strategy and business prospects."

Proceed with Caution
The general counsel concluded that the established policy, which was not issued in response to union organizing, could not be reasonably construed by employees to prohibit Section 7 activities, and that the case against Sears Holdings should be dismissed. (See www.nlrb.gov/shared_files/Advice%20Memos/2009/18-CA-19081.htm )

EMS employees should be careful. Though the NLRA offers some protection to private employees—even where a union isn't in place—that protection may not include unilateral, disparaging statements about the company or a supervisor that aren't legitimately related to the goal of improving the working conditions of all employees. Ranting and raving in itself usually won't be protected under the law, without a legitimate protected purpose.

EMS employers should also be careful. When establishing a social networking policy, they should make sure the policy goes out of its way to emphasize that it's not intended to interfere with employee rights under the law. Make sure it is not overly broad, and that it includes concrete examples of what is and isn't acceptable social media behavior. The policy should not be used to discipline an employee in retaliation for engaging in legally protected activity (such as legitimately organizing a union), nor should a new policy be issued in response to union activity and to unlawfully restrict that activity.

The key is to get your policies in place before union activity, and make sure that employees couldn't reasonably construe that the policy prohibited legally protected activity.

Steve Wirth, Esq., EMT-P, is a founding partner of Page, Wolfberg & Wirth, LLC. Steve is an active EMS provider and firefighter, and a national EMS speaker and a member of the JEMS and EMS Insider editorial board. He can be reached at swirth@pwwemslaw.com.



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