Facebook Firing. The Chill Beyond the Water Cooler

While social media, blogs, Facebook, Twitter and the like, are new ways for businesses to interact with key constituents, they are also new ways for businesses to get in to trouble, as current events have reinforced. The recent controversy over the “Facebook firing” of an American Medical Response employee whose complaints about her boss on her personal Facebook page is yet another example of the trouble and the confusion.

In our zeal to keep up with rapidly evolving communication tools, businesses may forget that some old and pretty slow-to-change, legal rules apply. I addressed one set of rules—copyright—the context of another current event in a recent post. The AMR matter highlights with another, the National Labor Relations Act or NLRA.

You might guess from its name that the NLRA is about unions, but you’d be wrong. Nonunion employers are covered as well, so the issuance of a complaint by the federal board that enforces the NLRA, the National Labor Relations Board (which, coincidentally, it announced on Twitter), against AMR over the Facebook firing has implications for all businesses.

AMR was actually ahead of most business when it comes to social media—it had a written policy on social media; many businesses still do not. The AMR policy included the statement:

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers or competitors.

Sounds pretty straightforward, huh? The NLRB is taking the position that such policies are too broad and put a “chill” on employees’ rights to discuss amongst themselves their working conditions. Such protected conversations used to happen around the water cooler; now they happen online with, potentially, the entire world listening in.

The AMR complaint is but the first step in a process of determining whether AMR did anything wrong. That process will have to take into account an earlier determination of the NLRB, made in a memorandum written less than a year before the AMR complaint, in which NLRB upheld a social media policy at Sears that prohibited:

Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects

Hmm, isn’t that about the same as the challenged AMR policy? Old laws like the NLRA definitely have to catch up with the new media. Until then, what’s a human-owned business to do? I think having a social media policy is better than not having one, but common sense should prevail, both as a policy—ask employees to use common sense in their complaints before a world-wide audience—and in constructing the policy —frame it carefully and with respect for your employees rights. Of course, having a knowledgeable advisor on your team wouldn’t hurt.