Chelsea Zalewski, an EMT with Butler Medical Transport, complained to a patient about the alleged poor condition of the company's ambulances. The company responded by firing Chelsea.
Chelsea posted about her termination on Facebook. William Norvell, another EMT with the company, responded by advising her to seek the assistance of a lawyer or the labor board and taking the company to court. The company responded by firing William.
An Administrative Law Judge (ALJ) concluded that the company's decision to fire William was an unfair labor practice. The ALJ determined that the condition of company vehicles was a common concern among company employees. Therefore, the Facebook postings between William, a current employee, and Chelsea, a former employee, constituted "concerted activity" protected by the National Labor Relations Act (NLRA).
In ruling, the ALJ rejected the company's claim that William's posting was available to the public and discredited the company. The ALJ concluded that the effect on the company's business from William's email is not a viable defense. Moreover, the ALJ ruled that the company's policy that prohibited employees from using social networking sites that could discredit the company was unlawfully overbroad.
In contrast, the ALJ upheld the firing of another EMT, Michael Rice, over his Facebook posting. In crude language, he suggested that a company vehicle he was driving broke down again due to poor maintenance practices. Michael refused to testify at the NLRB hearing, invoking his 5th Amendment privilege. But at a subsequent unemployment hearing, Michael informed the judge that he was referring to his own vehicle and not the company's vehicle.
The ALJ concluded that Michael's posting was not protected. Rather, it was malicious and false. As a result, the company was within its rights to terminate Michael's employment.
What does this suggest to employers? First, you must carefully craft your policies to comply with the terms of the NLRA. Second, you must carefully evaluate employee comments, whether verbal or in writing, to determine whether the communciations constitute concerted activity. And as this ALJ recognized, the fact that the communications may have an adverse effect on business does not justify an employer taking adverse action against an employee for engaging in protected, concerted activities.