The National Labor Relations Board ("NLRB") announced earlier this month that it filed a Complaint against an employer, American Medical Response of Connecticut, Inc. ("AMR"), for allegedly "terminat[ing] an employee who posted negative remarks about her supervisor on her personal Facebook page, ... illegally den[ying] union representation to the employee during an investigatory interview, and maintain[ing] and enforc[ing] an overly broad blogging and internet posting policy."

The National Labor Relations Act, 29 U.S.C. § 151 et seq., provides that employees "shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

According to the NLRB, an AMR supervisor asked an employee to prepare a report about a customer's complaint about the employee. The employee allegedly asked if her union representative could assist her in preparing the report, but the supervisor denied the request. The NLRB further alleges that, later in the day, the employee posted a negative remark on her personal Facebook page from her home computer about the supervisor. The NLRB contends that the employee's co-workers responded supportively to the posting, prompting her to post additional negative comments about the supervisor. AMR suspended and ultimately discharged the employee for her Facebook postings, which violated AMR's Internet policy.

According to the NLRB, the Facebook postings constituted "protected concerted activity," and AMR's Internet policy contained "unlawful provisions," including a provision prohibiting employees from making disparaging remarks about the company or supervisors and another provision prohibiting employees from depicting the company on the Internet without permission from the company. The NLRB maintains that these provisions constitute "interference with employees in the exercise of their right to engage in protected concerted activity." 

  • Bottom Line

Watch future issues of the Employment Law Monthly for updates on this case, which may have significant implications for all union and non-union employers. In the meantime, employers should remember that their employment policies should not interfere with the right of an employee to communicate with co-workers about the terms and conditions of employment.