The National Labor Relations Board (“NLRB”) recently settled a case where an employer terminated an employee for criticizing her supervisor on Facebook. In a complaint filed against American Medical Response, Inc., the NLRB took the position that the employee’s termination interfered with the employee’s protected concerted activity in violation of the National Labor Relations Act (“NLRA”). The NLRB also criticized the employer’s policy that prohibited employees from depicting the employer in any way on social media sites or writing disparaging comments about co-workers or managers. The policy specifically stated, “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” The NLRB alleged that this policy interfered with non-union employees’ right to engage in protected concerted activities by effectively silencing their opinions about the terms and conditions of their jobs.
Lessons for Employers
Many labor experts believe the NLRB is attempting to increase its profile among all employers, not just unionized employers. All employers must remember that Section 7 of the NLRA protects employees’ protected concerted activity regardless of whether their workplace is unionized.
Employers often include certain policies in their handbooks that are meant to curb what the NLRB currently regards as protected concerted activity (i.e., employees discussing the terms and conditions of employment). Policies that implicitly or explicitly prohibit conduct that could be considered “protected concerted activity” will be subject to increased scrutiny by the NLRB. Even if a company is non-union, employees’ right to engage in protected concerted activity must be preserved.
We recommend that employers review their handbooks and revise any policy, including social media and computer usage policies, that may invite a disgruntled employee or aggressive union to contend the policies violate the NLRA by inhibiting employees’ ability to discuss the “terms and conditions” of their employment.