Employers beware: the National Labor Relations Board (NLRB) is administratively pursuing a lawsuit against a Connecticut employer that terminated an employee for making "negative" comments about her boss on her personal Facebook page. According to an NLRB press release, the controversy arose when the employer "illegally denied union representation to the employee during an investigatory interview." The employee's supervisor asked her to complete a report regarding a customer complaint about her work but denied her request for representation from her union, Teamsters Local 443.
Later in the day, the employee posted a "negative remark" about her boss on Facebook using her home computer. According to the NLRB, the comment "drew supportive responses from her co-workers and led to further negative comments about the supervisor from the employee." The employee was subsequently suspended and later terminated for her postings because they violated the employer's Internet policy.
The NLRB investigated the employee's termination, finding that the employer "maintained and enforced an overly broad blogging and Internet posting policy" that contained "unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission." The NLRB found that such provisions interfere with employees "in the exercise of their right to engage in protected concerted activity."
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity. Generally, two or more employees acting together to address a collective employee concern is considered protected concerted activity. However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. Employees, however, do not have unfettered discretion in choosing their mode of protest. For the concerted activity to be protected, it must take a reasonable form – the NLRA does not protect employee activity that is "unduly and disproportionately disruptive." Thus, while employers can (and should) maintain work rules and policies that address unduly and disruptive behavior, such rules must be carefully drafted so as to avoid being overly broad in violation of the NLRA.
As shown above, employers need to be aware of the NLRA's protections to employees for engaging in protected concerted activity when contemplating taking disciplinary action against an employee. Similarly, employers should also review their Internet policies to ensure they are not overly broad. Remember, the NLRA applies to both union and non-union employers, so even non-union employees have the right to engage in protected concerted activity.