Facebook is everywhere and its implications for employers can be maddening. It is one thing to prevent your employees from using Facebook while they are at work, but what control do you have over what your employees say on Facebook when they are not at work? Surely you can discipline an employee for calling his or her supervisor a psycho on the World Wide Web? Not according to the general counsel of the National Labor Relations Board.
On Oct. 27, 2010, the NLRB's Hartford regional office issued a complaint against a Connecticut ambulance service asserting that the termination of an employee who bad-mouthed her supervisor on Facebook, and the policies on which the termination was based, were illegal under federal law. The employee's comments, which included a reference to her supervisor as a psychiatric patient, drew support from co-workers that were her Facebook "friends." According to the general counsel’s complaint, when the company learned of the employee's online rants, it suspended and ultimately terminated the employee on the grounds that her Facebook postings violated the company's Internet policies. In the general counsel's view"the employee's Facebook postings constituted concerted protected activity, and that the company's blogging and Internet posting policy 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 a way over the Internet without company permission." See News Release, National Labor Relations Board, office of the general counsel, Nov. 2, 2010. In the Board's view, such policies "constitute interference with employees in the exercise of their right to engage in protected concerted activity." Id.
A hearing in the case is scheduled for Jan. 25, 2011, and it remains to be seen whether the Board will prevail, but there can be no question that this is a ground-breaking and potentially far-reaching development. Non-union employers do not think much about the National Labor Relations Act, but they should. In addition to governing employees' union-related activities, the Act prohibits employers from curtailing employees - union and non-union – from engaging in concerted protected activities. This means that employers generally cannot restrict employees’ right to discuss the terms and conditions of their employment with their fellow employees or anyone else. Under the Hartford region's complaint, an employee's criticism of her boss on a social networking site, even if it is derogatory or vulgar, qualifies as an activity that is protected under the National Labor Relations Act. Thus, even if you do not have a union, you could still run afoul of federal law when you discipline employees for what they say about their job. Moreover, the Board's complaint contends that the company's objective policies addressing employees' online activities are unlawful under the NLRA.
The general counsel’s position in this case could easily be extended to all forms of social media and will apply to unionized and non-union employees alike. Thus, employers should closely monitor the outcome of this case and take care to assess the possible consequences of disciplining or terminating employees for making statements about their jobs or their bosses online. Employers should also consider whether or not they need to implement social-networking policies, or, if such policies are already in place, reevaluate them to assess whether they are permissible under the general counsel’s view in this case.