The infamous NLRB Facebook posting has been resolved, leaving with barely a whimper as opposed to the explosion of social media induced unfair labor practice charges every employer feared.
The NLRB announced on February 7 that settlement had been reached in the case of the ambulance driver who was discharged for posting negative comments about her supervisor on her personal Facebook page. The employee used the ambulance service's code for "mental patient" to refer to her supervisor in the Facebook posting, a comment which prompted other employees to respond. The employer discharged the employee for violating its internet and blogging policy, which prohibited disparagement of company officials. According to theNLRB Facebook Settlement Press Release.pdf the NLRB's complaint alleged
“that the discharge violated federal labor law because the employee was engaged in protected activity when she posted comments about her supervisor, and responded to further comments from her co-workers. Under the National labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers, and others.
”The NLRB announcement states the company, American Medical Response of Connecticut, Inc.,
“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 woudl not discipline or discharge employees for engaging in such discussions.
”The discharge itself was "resolved through a separate, private agreement between the company and the employee." No information about whether the employee was reinstated or received any backpay compensation was provided.
The original complaint garnered widespread media attention because of the nature of the "discussion" among employees taking place on the popular social media tool, instead of around the water cooler. We previously reported on it in a Client Alert NLRB "De-Friends" Employers In Its First Complaint Based On Employee's Facebook Comments where we included a summary of the law concerning protected concerted activity.
In terms of development of the law, the settlement was rather ordinary. It has been NLRB policy for many years to pursue complaints against employers maintaining policies that the agency determines are so broad that they might inhibit employee activity protected under the NLRA. The NLRB has determined that a variety of policies are overbroad, and therefore unlawful: employer policies that limit employee discussion of terms or conditions of work (unless it involves confidential company information), employer policies that prohibit disparagement of company officials (employes have a right to speak negatively and complain), no solicitation polcies and policies restricting access to the employer's premises while the employees are off the clock. It is good practice for employers, both union and non-union, to review policies periodically to ensure compliance under the NLRA. The NLRB will issue a complaint even if an overbroad policy has not been enforced.
The recently settled Facebook case leaves some unanswered questions. For example, at what point, if any, does a "disparaging" comment about a supervisor or the employer lose protection under the NLRA if it is published to hundreds of people who have no connection to the complaint? And, under what circumstances can an employer be found to have engaged in surveillance by reviewing the comments posted on an employee's social media page?
The wait for an answer to these questions probably will not be long. There are other cases involving social media working their way through the NLRB.