Can You Be Fired for Bad-Mouthing Your Boss on Facebook?

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Dawnmarie Souza's comments on her Facebook page didn't win her any points with the boss, but the rest of us owe her a debt of gratitude. In a rare test of old law on a new medium, she helped us understand just how little the online world differs from the land of bricks and mortar.

Souza's career as a paramedic at American Medical Response of Connecticut Inc. may not have been too bright even before she called her boss various genital parts in a November 2009 Facebook posting. She had been hauled on the carpet for several incidents of allegedly rude behavior and had further rankled the emergency-response company by asking to have a union representative present when she was to be questioned about one particular customer's complaint that she had been rude, according to a National Labor Relations Board (NLRB) investigation of the case. The company denied the request, and that, in turn, set off her colorful Facebook flurry. American Medical fired her 23 days later.

There's no indication that Souza thought she was addressing anyone but her friends and co-workers with the online posts, which didn't reveal the company's name. "I'm so glad I left there," responded one commenter. "I am sorry hon!" answered another. "Chin up." But as pretty much any 15-year-old (and most adults) knows by now, being friends on the social-networking site is a loose concept. There are friends that you invite to your page, but, depending on your privacy settings, there are plenty of less-friendly characters who can see your information. In Souza's case, according to the NLRB, that included the local firefighter who apparently tipped off her boss, Frank (his real name), whom she had described in less than flattering terms.

This is not behavior that will win you employee of the month. It is also not a situation likely encountered in the physical world. Workers gripe about their employers all the time, but usually to a select few people rather than a hearty slice of the Internet population. Shouldn't it make a difference when you've broadcast insults to millions online rather than to a small group of friends and co-workers?

Not when it comes to labor law, according to the NLRB. The federal National Labor Relations Act prohibits employers from punishing employees, whether or not they are members of a union, for talking about wages or workplace conditions or forming a union. The idea is to ease communication among workers so they can decide whether a union is necessary.

American Medical, the NLRB argued in a complaint filed Oct. 27, 2010, had violated the act in three ways. First, by refusing Souza's request for a representative of the union of which she and her co-workers were members. Second, by firing her for her posts. And third, by maintaining a "blogging and Internet-posting policy" that "prohibited employees" from, among other things, "making disparaging comments when discussing the company or the employee's superiors, co-workers and/or competitors."

The agency's simple point: "Just because you make a statement on social media doesn't mean you waive your rights," explained Lauren Schwartzreich, an employees' lawyer at Outten & Golden in New York City.

It no doubt made a difference to the NLRB that Souza was conversing on her page with at least some co-workers, rather than just a bunch of strangers, and thereby advancing the act's purpose. It did not, though, make a difference that countless others may have been in on the conversation. That's something new and an essential contrast between the Internet and the office water cooler.

Still, "this case doesn't answer the question of when an employer can discipline an employee just for speaking badly about the company on something unrelated to work," says Gary Phelan, an employment lawyer with the Connecticut firm of Cohen & Wolf. "There are also basic defamation and slander laws under which the employer can sue," and maybe win, if an employee post is defamatory and untrue.

The case also doesn't address situations in which the boss takes offense at a former or prospective employee's posts online. Plenty of companies sue ex-employees who bash their former bosses. There's also no law against rejecting an applicant because of the content of his or her Facebook page. And as employers have shied away from giving recommendations for fear of being sued by an ex-employee if it's a bad one, Facebook has become a go-to source for digging up dirt about applicants.

Just as important, the case itself has limited value as a precedent: it never reached a hearing and decision. American Medical and the NLRB settled the charges a few weeks ago, with the company agreeing to narrow its Internet and blogging policies "to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work," according to an NLRB statement. The company also agreed not to punish employees for requesting a union representative. American Medical said in its own written statement that it can still bar employees from harassing or defaming co-workers or violating patient confidentiality or company trademarks on Facebook. A representative for the company also stressed that it had fired Souza for "serious violations," which it would not elaborate upon, and that she would not be allowed to return to work. Souza did not return a call for comment.

Still, despite those unanswered issues, the case is an early and striking venture into the realm of workers' rights on the Internet, and the message is reassuring: when it comes to Facebook and other new media, the old laws still work.