Can an employer terminate an employee for posting negative remarks online? The short answer: maybe not. A company in Connecticut fired an employee after she posted insulting personal remarks about her supervisor on her Facebook page. That company, American Medical Response of Connecticut, now faces an unfair labor practice charge brought by the National Labor Relations Board (the “NLRB”). Although American Medical Response of Connecticut is a unionized workforce, the potential ramifications of the NLRB’s action reaches to unionized and non-unionized workforces alike.
Under federal law, all employees are entitled to engage in “protected concerted activities,” which include discussing working conditions between two or more employees. For the first time, federal law may protect these activities when they occur on employees’ personal websites or social networking pages.
What constitutes protected concerted activity in cyber-space is not entirely clear. Protected activity may include an employee complaining on his or her blog about pay if other employees read or comment on the blog posting. Depending on the outcome of the American Medical Response of Connecticut matter, protected activity also may include an employee making critical statements online about co-workers or about the employer.
Overly broad social networking or internet policies also may violate federal law if such policies interfere with employees’ rights to engage in protected concerted activity. For example, in the American Medical Response matter, the NLRB contends that the Company’s internet policies are unlawful because they prohibit employees from making disparaging remarks about the Company. American Medical Response’s policies also prohibit employees from depicting the Company in any manner online without permission.
The American Medical Response matter is set for a hearing in January, 2011, so we soon will have some guidance on an employer’s ability to regulate and react to employee social networking activities. In the meantime, employers should act with caution in disciplining or terminating an employee for his or her online communications. Employers also should implement social networking and/or internet use policies that address online communications and should review current policies to ensure that the policies do not interfere with lawful, employee conduct.