For the first time, the National Labor Relations Board (NLRB) has taken a position in a case involving an employee who posted negative comments about her employer on a social media site; and employers should pay heed. The NLRB’s Hartford, Connecticut office recently issued a complaint that alleges, among other things, that American Medical Response of Connecticut acted unlawfully by (1) terminating an employee, who posted negative remarks about her supervisor on her personal Facebook page, and (2) maintaining an overly broad blogging and internet posting policy.
The NLRB is the federal agency tasked with enforcement of the National Labor Relations Act (the “Act”), which, among other things, prohibits employers from interfering with employees’ rights to discuss wages, working conditions and unionization (i.e., protected concerted activity). Here, the employee mocked her supervisor on Facebook, including the comment, “love how the company allows a 17 to become a supervisor” (“17” is the ambulance service company’s code for a psychiatric patient). Because the employee’s comments drew supportive postings from her co-workers, it is the NLRB’s position that the terminated employee engaged in concerted activity protected under the Act, thereby making it unlawful for the employer to fire her for that activity.
The NLRB complaint also contends the company’s blogging and internet policy contains unlawfully broad language, including:
“Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisors, coworkers or competitors.”
Additionally, the Company policy prohibited depicting the company “in any way” over the internet without permission. The complaint alleges that the policy as written violates the Act.
The case is currently scheduled for a January 25, 2011 hearing before an administrative law judge. While the NLRB has issued prior decisions that would lend support for the Company’s position in this case, the composition of the NLRB has changed significantly. Currently, the NLRB, to which an ALJ decision may be appealed, stands at 3 Democrats and 1 Republican member, and that composition portends decisions that likely will be less favorable to employers.
In the meantime, this complaint is a perfect example of the caution employers must exercise in both drafting and enforcing social media and other work rule policies. All employers, unionized or not, should review their social media and other work rule policies and determine whether a reading of the policy would reasonably tend to chill employees in their right to discuss unionization and other terms or conditions of employment. If the answer is yes, the employer should consider modifying the work rule. Additionally, this case highlights why it is essential for employers to regularly revisit their social media and related policies to ensure that those policies stay current with the law as it develops.