Can You Restrict an Employee From Calling Her Supervisor a "Scumbag" on Facebook?


The answer is that it may be more difficult than you think.

On Feb. 7, 2011, a battle between the National Labor Relations Board (NLRB) and American Medical Response of Connecticut, Inc. (AMR), over an employee’s Facebook activity ended in a settlement that should be a signal to employers to review their social media policies to ensure they clearly communicate the company’s policy and comply with NLRB regulations.

This advisory provides a brief discussion of the settlement and offers some questions employers should answer to help them begin reshaping their policies.

From home, the AMR employee posted derogatory comments about her employer on Facebook. Specifically, she referred to her supervisor as a “scumbag” and compared AMR management to psychiatric patients. AMR responded to the post by firing the employee according to its policy that prohibited employees from disparaging the company or commenting on the company online without permission.

The NLRB characterized AMR’s nondisparagement policy as "overbroad" because it potentially infringed on an employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that AMR’s termination of the employee was illegal because she was complaining about the general terms and conditions of her employment, and that prompted her co-workers to respond to her Facebook post.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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