The NLRB's general counsel recently filed a complaint (http://tinyurl.com/2abyxyc) against an employer for terminating an employee who used her personal Facebook page to post disparaging remarks about her supervisor. The company had a written policy that prohibited employees from posting disparaging remarks online about the company or employees' supervisors, co-workers, or competitors. The NLRB contends that the company's policy is unlawful on its face because it tends to interfere with an employee's right to engage in “protected concerted activity.” The concept of protected concerted activity applies both to unionized and unorganized employers. While this case is merely at the complaint stage and neither an administrative law judge nor the NLRB has ruled on the issues raised, it signals that the general counsel (who heads the NLRB's prosecutorial function) intends to pursue employers who have similar broad Internet non-disparagement policies.
The complaint raises two legal issues that will be resolved by the NLRB. The first issue is whether a Facebook posting of an individual's personal thoughts about his/her employer or his/her supervisor is “concerted” activity. As a general principle, the NLRB has taken the position that to be concerted, the activity must have a link to group activity. The general counsel must prove either that the employee's Facebook airing of her negative view of her supervisor has a “link” to a group of employees or must convince the current NLRB to modify its standard.
The second issue is whether the communication is “protected” activity. The NLRB distinguishes between appropriate means of expressing a grievance against one's employer that is entitled to protected status and inappropriate means of expression that are not entitled to protection.
In view of this complaint, companies should review their Internet and social media policies and assess the risk of whether the general counsel might find it violative of the National Labor Relations Act (http://tinyurl.com/24hka3).