The General Counsel of the National Labor Relations Board ("NLRB") has issued a complaint against a Connecticut company alleging that it unlawfully fired an employee after she posted disparaging comments about her supervisor on her Facebook page. The General Counsel also contends that the company's internet and blogging policy - which prohibits the posting of disparaging comments about the company - is unlawful on its face because its prohibitions would tend to interfere with employees' exercise of their right to engage in "protected concerted activity." Because employees, whether or not represented by a union, have rights under the federal labor law, the General Counsel's move is important to all private-sector employers, which should immediately review and, if necessary, revise their policies so as not to become targets of future prosecutions by the NLRB's General Counsel.
This case, the first of its kind at the NLRB, signals an aggressive move by the new General Counsel against social media policies. The prosecution will proceed, initially, before an Administrative Law Judge, who will decide two major issues. One issue is whether the employee's Facebook post was "concerted." Since Meyers Industries, 281 NLRB 882 (1986), the Board has held that to be "concerted," employee conduct must have a link to actual group action. Meyers overturned Alleluia Cushion, 221 NLRB 999 (1975), in which the Board had found that, to be "concerted," it was sufficient that the employee's action was in furtherance of other employees' rights. Under Meyers, an individual employee's Facebook post attacking a supervisor would not seem, absent additional facts, to be group action. However, the General Counsel may ask the Board for a reconsideration of Meyers in light of the facts of this case (and a change in the composition of the Board). A similar request to overturn Meyers was rejected during the Clinton Board years. See Myth, Inc. d/b/a Pikes Peak Pain Program, 326 NLRB 136 (1998).
The second issue the ALJ will need to decide is whether the employee's Facebook post was "protected" communication. Under present law, certain communications are considered so disrespectful, vile, or profane as not to be protected, despite the fact they relate to terms and conditions of employment or the workplace. Compare, Aluminum Co. of America, 338 NLRB 20, 21-22 (2002) (repeated incidents of ad hominem profanity against supervisor, not emotional outburst provoked by officials of the employer and not within Act's protection), with, Burle Industries, 300 NLRB 498 (1990), enf'd, 932 F.2d 958 (3d Cir. 1991) (employee did not forfeit protection when, in the course of encouraging employees to leave the facility due to a possible chemical spill, due to frustration and "animal exuberance" in the heat of the moment, he called a supervisor a "f'ing asshole" for wanting employees to work despite the fumes).
A decision by the ALJ might be appealed to the full, five-member NLRB, to a federal court of appeals, and perhaps to the Supreme Court. The General Counsel's action does not necessarily represent the views of an ALJ or the five-member Board, but does reflect the views of the prosecutorial arm of the federal agency.
Whatever the outcome of the General Counsel's arguments on the discharge, his prosecution against the employer's internet and blogging policy may result in the finding of a violation. In general, broad policies prohibiting workplace-related discussions have been struck down by the Board. Therefore, now is an appropriate time to review all social media, email, internet, and solicitation policies for National Labor Relations Act compliance. An ounce of prevention could avoid another "high profile" prosecution by the General Counsel against your company.