Facebook Firings: One Employee Wins, One Loses

Why do so many of the Facebook firing cases occur in the ambulance industry? Oddly, I represent many ambulance companies and none of them have ever encountered a Facebook firing situation that I am aware of.

In Butler Medical Transport, LLC, two employees were terminated for posting comments on Facebook. One suggested to a former employee that she contact an attorney or the Labor Board (she won). The other just made up some stupid stuff about his vehicle breaking down (he lost).

Former Butler employee Zalewski was terminated and posted the following on Facebook, “Well, no longer a butler employee….Gotta love the fact a “professional” company is going to go off what a dementia pt says and hangs up on you when you are in the middle of asking a question.” She continued in another post

Yeah ur telling me! The pt said I told her that they never fix anything on the units… Yeah I no that pt I’m not dumb enough to tell her let alone any pt how shitty those units are they see it all on their own.

Butler employee Norvell responded by posting, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.” He then made another post, “You could contact the labor board too.”

A copy of the posts were delivered to Butler’s human resource department. HR told Norvell his posts violated the company’s rule against using social networking sites in a manner that could discredit Butler or damage its image. Norvell was terminated, contacted the NLRB, and filed an unfair labor practice charge against Butler Medical Transport.

The case was tried before an Administrative Law Judge who indicated that the Facebook post must be considered in the context in which it was made. Here, Norvell advised Zalewski, a fellow, yet former employee, to obtain an attorney and to contact the Labor Board. What the ALJ found particularly interesting was the fact that Norvell was responding to a post in which Zalewski herself states that she had been terminated for commenting to a patient about the condition of Butler’s vehicles which is a matter of mutual concern to Butler’s employees.

By advising Zalewski to obtain legal counsel or contact the Board, the ALJ found that Norvell was engaged in a common cause with Zalewski regarding a matter of concern to more than one employee and thus found that the post was protected by Section 7 of the National Labor Relations Act regardless of whether Norvell’s post may have an adverse effect on Butler’s business. Norvell got his job back and was awarded back pay.

Now for an employee who wasn’t as lucky as Norvell.

Michael Rice was terminated by Butler for posting the following on Facebook:

Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna by new shit!!!! Cha-Chinnngggggg chinning-at Sheetz Convenience Store.

Despite his lack of command of the English language and grammar, the major problem with Rice’s Facebook post is that he made up the whole story; he lied.

Butler’s COO testified without contradiction that he reviewed Butler’s maintenance records and determined that Rice’s ambulance had not broken down when he made that post. Rice’s Facebook post was maliciously untrue and made with the knowledge that it was false. As noted by the ALJ, an employee’s public criticism of an employer is not protected by the National Labor Relations Act if it is maliciously untrue, i.e. if made with knowledge of its falsity or with reckless disregard for the truth. Remember this case that came to the same conclusion?

This case is a reminder to all companies to review your social media policies and any other similar internal memos, codes of conduct, bullet point lists, etc. that relate to social media to be sure they conform with the NLRB’s recent rulings on social media policies. The NLRB has a new ruling on social media cases every few weeks, so it is important to stay up to date on the latest developments as they occur.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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