Woman wrongly fired for Facebook rant vs. boss, NLRB says

Wednesday, November 10, 2010

Derogatory comments posted by a Connecticut woman on Facebook about her boss should be protected under labor laws, federal officials say.

The National Labor Relations Board contends that a Connecticut ambulance company violated the National Labor Relations Act by firing Dawnmarie Souza in 2009 for making unfavorable remarks about her supervisor, Frank Filardo, on Facebook.

American Medical Response of Connecticut Inc. has a policy that states in part: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers, and/or competitors.”

Souza, an emergency medical technician, criticized Filardo for making her fill out an incident report concerning a customer complaint at work. According to the Associated Press, Souza said to other company colleagues who were her Facebook friends: “Looks like I’m getting some time off. Love how the company allows a 17 to be a supervisor.”

The company uses 17 as the code for a psychiatric patient. Souza also referred to her supervisor with two expletives. She also said on Facebook that Filardo denied her request for union representation. Her remarks drew supportive posts from other colleagues.

As a private employee, Souza does not have a First Amendment claim against her company. The First Amendment protects speech only against government action. A public employee might be able to file a First Amendment lawsuit, but a private employee cannot.

However, private employees might have protection under a law or statute. One such statute is the National Labor Relations Act, which protects employees engaging in union-related activities. The protection can include conversations about ways to improve working conditions.

Souza’s union — the International Brotherhood of Teamsters, Local 443 — and the NLRB’s office in Hartford, Conn., contend that she has a claim under Section 7 of the act, which provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a) of the NLRA further provides that it is an “unfair labor practice” for an employer to punish an employee for the exercise of her Section 7 rights.

The NLRB contends that the company policy is unlawful and that Souza’s Facebook comments to co-workers constitute protected activity under the labor-relations act.

“It’s the same as talking at the water cooler,” Lafe Solomon, the NLRB’s acting general counsel, told the AP. “The point is that employees have protection under the law to talk to each other about conditions at work.”

Federal labor law has long protected employees against reprisal for talking to co-workers on their own time about their jobs and working conditions, including remarks that may be critical of managers, AP reported. The law applies whether or not workers are covered by a union.

According to an NLRB news release, a hearing is scheduled before an administrative law judge on Jan. 25, 2011.

The Associated Press contributed to this report.