NLRB Files Complaint for Employer’s Allegedly Overbroad Social Media Policy

As reported in today’s New York Times, on October 27 the NLRB Hartford Regional Office issued a complaint against an ambulance service provider, American Medical Response (AMR), for terminating an employee for posting disparaging comments about her employer on Facebook.  When the employee was denied union representation by a supervisor after an incident at work, she posted negative comments about the supervisor on her Facebook page from her home computer. After discovering the posts, AMR suspended and later terminated the employee for violating a few of the company’s blogging and Internet posting policies. 

"Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization. The labor board said the company’s Facebook rule was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves."

New York Times

A November 2 press release explained the NLRB’s position that AMR’s policies illegally interfered with its employees’ right to engage in protected activity under the National Labor Relations Act (NLRA) – specifically, policies that prohibited employees from (1) making disparaging remarks about the company or supervisors and (2) depicting the company on the Internet without permission. Under the NLRA, an employer cannot unduly restrict its employees’ ability to discuss terms and conditions of employment, regardless of whether a union exists, for fear that such restriction will impede employees’ ability to fairly unionize. At the same time, the NLRA does not provide carte blanche for employees to criticize or disparage their employers.

Employers should keep an eye on this case and how it may affect their policies regarding employee use of the Internet and social media. Many companies have drafted broad policies like the ones cited here that purport to greatly restrict what employees can say about the company. Though such policies are most likely to be invoked when employees post material to the Internet or social media sites that exhibit clear insubordination or disloyalty to the company, the NLRB was clear in expressing its concern for the possibility for companies to use the policies to stifle union-related employee communications.

As social networking continues to grow in popularity, it is inevitable that employees will post material that criticizes or otherwise goes against the interests of their employers. For example, this past August a Massachusetts teacher was fired for comments she posted on her Facebook page after calling residents of her school district “arrogant and snobby” and her students “germ bags.” And in a recent federal case out of New Jersey that has led to discussion over employer monitoring of employee social networking sites, employees sued their employer after they were fired for starting a Facebook group to vent about work.

When employees are disciplined or terminated for material they post to the Internet, employers will need to demonstrated that their actions did not unduly restrict the employees’ ability to discuss their terms and conditions employment. To bolster this argument, employers should make clear in their Internet, blogging, or social media policies that whatever restrictions there are on employee Internet postings, employees will not be disciplined for activity protected under the NLRA.  

Authored by Bret Cohen.