US and Canadian Tribunals Consider Whether Workers Can be Fired for Facebook Posts

The US National Labor Relations Board (NLRB) has filed a complaint against the American Medical Response of Connecticut for firing a medical technician, Dawnmarie Souza, who criticized her supervisor on Facebook. Souza was fired for, among other things, violating her employer’s policy that bars employees from describing the company “in any way” on social media sites. Souza had been asked to prepare a response to a customer’s complaint. Her supervisor denied her request to have a union representative help her to prepare her response. Souza then mocked her supervisor on Facebook, using several vulgarities and referring to him as a ‘17’, a term used within the company for a psychiatric patient. The NLRB alleged that a worker’s criticism of their employer on social networking sites is protected activity because under the National Labor Relations Act workers have the right to discuss working conditions with each other. The case is scheduled to be heard by an Administrative Law Judge in January. Experts view the case as groundbreaking and are anxious to see whether the right to discuss working conditions extends to content posted on social media sites that can be viewed by many people, and if so, whether the nature of the comments will be relevant. In a parallel development, the British Colombia Relations Board (Board) has held that West Coast Mazda, a car dealership, had sufficient cause to fire two employees for comments that they posted on Facebook. The two employees made offensive and threatening comments towards their supervisors and managers. The posts included references to stabbing someone in the face 14 to 16 times, statements that accidents DO happen when others affect your ability to earn a living, and admiration for the top 5 kills on Dexter – a TV show with a protagonist serial killer. The employees were unable to convince the Board that they were targeted because of union bias and that, although the Facebook comments may have been inappropriate, they did not constitute a serious workplace offence. Instead, the Board held that the comments were inappropriate and amounted to serious insubordination and conduct damaging to the employer’s reputation. For newspaper articles in The New York Times and the Vancouver Province, which discuss the respective cases, see: http://tinyurl.com/35jfm58; and http://tinyurl.com/25zog9b Follow this link for the BC Labour Relations Board decision: http://www.lrb.bc.ca/decisions/B190$2010.pdf Summary by: Adam Lis