- February 15, 2011
- Posted by: Seth Heyman
- Categories: Business Law, Employment Law
Monday’s settlement of the “Facebook Firing” case has left employers across the country with little or no guidance on the issue of whether an employer can discipline or terminate an employee who posts disparaging comments about her employer online. The case, which was brought against AMR by the National Labor Relations Board, revolved around the question of what constitutes “protected concerted activity” in cyber-space, as that term is described under Section 7 of the National Labor Relations Act.
Employers across the country were hopeful that a court ruling in the case would provide more definitive guidance on how best to reconcile their desire to control the way in which their companies are depicted online with their employees’ right to engage in free and unfettered discussions about their employment.
However, on the eve of trial, the NLRB and AMR settled the matter and thus removed the opportunity for guidance that so many were anticipating. According to the Board’s press release: “[T]he company agreed to revise its overly-broad rules 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, and that they would not discipline or discharge employees for engaging in such discussions.”
The overwhelming majority of court cases settle before trial. Of course, parties who elect to settle their differences out of court are to be applauded, it is nevertheless frustrating that employers, employees, and attorneys will have to wait for a case with similar issues to go to trial before courts get the opportunity to lay down the law. In light of the exploding popularity of social media, the wait is not likely to be long.