Facebook Posting and its Implications on Job Security - Fordham Intellectual Property, Media & Entertainment Law Journal
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Facebook Posting and its Implications on Job Security

Facebook Posting and its Implications on Job Security

When Facebook originated, it was a web site created for college students to interact with one another. However, as Facebook began to grow in popularity and additional applications became available to interface with it, the individuals permitted to create an account were no longer limited by an .edu email address indicative of a college student, and potential privacy issues have evolved and expanded. Making the decision to post a comment or a picture on Facebook in order to share with friends and family may now result in negative ramifications on a user’s career and personal life.

Dawnmarie Souza was an employee of American Medical Response of Connecticut, Inc., a company operating ambulance and medical transport services, whose particular situation garnered the interest of the National Labor Relations Board (NLRB) leading it to file a complaint on her behalf.[1] According to Souza, she was wrongfully denied her union representation, and threatened with discipline for requesting representation, during an investigatory interview.[2] Following this interview, Souza returned home and decided to vent her frustration by posting a negative comment about her supervisor on her personal Facebook page.[3] Following her post, her former co-workers responded with supportive responses, which prompted further negative commentary about the supervisor from Souza.[4] Three weeks after this incident, Souza was fired from her job.[5] The NLRB is alleging that her Facebook posting is the sole reason behind her dismissal and that American Medical Response of Connecticut, Inc. had a stringent and overly broad blogging and Internet posting policy.[6] The policy included provisions preventing employees from making any negative remarks about the company, its supervisors or generally depicting the company on the Internet without company permission.[7] According to American Medical Response of Connecticut, Inc. the Facebook postings were not the reason for Souza’s dismissal from her position.[8] Instead, her dismissal was based on multiple issues including her failure to meet the standards of the company.[9] The various issues in this case included whether the company’s Internet policy was overly broad and whether the postings were in fact concerted activity.[10] Concerted activity is federally protected communication amongst employees whose goal is to improve work conditions.[11] The initial hearing before an NLRB administrative law judge was scheduled for January 15, 2011, but was delayed until February 8, 2011.[12] However, the American Medical Response of Connecticut, Inc. settled with Souza on February 7, 2011.[13]

Although this was the first time that the federal agency had become involved with a complaint involving social media, this is not the first potential lawsuit involving social media problems in the workplace.[14] In 2009 a case, which ultimately settled outside of court as well, involved two restaurant workers who sued their former employer after they were fired for violating the company’s core values.[15] This determination was based on the supervisor obtaining access to postings on a password protected MySpace page meant only for the employees.[16] Cisco Systems Inc. has been involved in two lawsuits that have been resolved related to comments by an anonymous blogger, who was a Cisco attorney, about two lawyers who were involved in a lawsuit with Cisco.[17] Additionally, in a pending lawsuit, a former high school teacher sued the school district after claiming that she was for all intents and purposes forced to resign from her position because of Facebook pictures depicting the teacher during her free time while on vacation, holding a glass that contained alcohol.[18]

These cases raise various important questions and implications as technology and various social media options continue to evolve. Given the limited case law currently available, employees are left wondering how they can keep their private life beyond the scope of their employers, and companies are left wondering how they can protect their public reputation and image while also enforcing the beliefs and values they would like their employees to possess.[19] With limited information on what level of interaction between employers and employees on social media sites is appropriate, the potential for litigation is extremely broad.[20] There is potential for social media related sexual harassment lawsuits, religious, political, and sexual orientation discrimination accusations, and libel claims, to name a few.[21] Legal experts have recommended not only creating an Internet posting policy, but also carefully choosing the phrasing to limit the ambiguity of the policy provisions.[22] This policy can illustrate whether or not there will be any sort of disciplinary action based on the content of the posts, and would formally put the employees as well as the employers on notice as to what is and is not allowed.[23]

As more cases such as Souza’s emerge, it is obvious that this is an area of law that will evolve and remain relevant as social media continues to become engrained as an everyday means of social interaction.



[1] The BLT: The Blog of LegalTimes, NLRB Sues Company for Firing Worker Over Facebook Post, http://legaltimes.typepad.com/blt/2010/11/nlrb-sues-company-for-firing-worker-over-facebook-post.html (last visited August 17, 2011).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Tech Republic, New Case May Prevent Employees From Getting Fired Over Derogatory Facebook Comments, http://www.techrepublic.com/blog/career/new-case-may-prevent-employees-from-getting-fired-over-derogatory-facebook-comments/2738?tag=mantle_skin;content (last visited August 16, 2011).

[11] Jeanette Borzo, Employers Tread a Minefield, Wall Street Journal, Jan. 21, 2011, available at http://online.wsj.com/article/SB10001424052748703954004576089850685724570.html?mod=djemTECH_t.

[12] Business and Legal Resources, Facebook Firing Hearing Delayed, http://hr.blr.com/HR-news/Unions/Unions/Facebook-Firing-Hearing-Delayed/ (last visited August 16, 2011).

[13] Company settles Facebook/NLRB case of employee firing, http://www.techrepublic.com/blog/career/company-settles-facebooknlrb-case-of-employee-firing/2803 (last visited August 16, 2011)

[14] Jeanette Borzo, Employers Tread a Minefield, Wall Street Journal, Jan. 21, 2011, available at http://online.wsj.com/article/SB10001424052748703954004576089850685724570.html?mod=djemTECH_t.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Tech Republic, New Case May Prevent Employees From Getting Fired Over Derogatory Facebook Comments, http://www.techrepublic.com/blog/career/new-case-may-prevent-employees-from-getting-fired-over-derogatory-facebook-comments/2738?tag=mantle_skin;content (last visited August 16, 2011).

[23] Id.

Raquel Goldstein