February 7, 2011 – The National Labor Relations Board is taking a very aggressive position with respect to Employer Social Media Policies, and believes that in some circumstances, a posting on a Facebook page may constitute “concerted activity”. All private sector employers, regardless of whether their employees are represented by a Union, that have social media, blogging, or computer use policies must take note of the NLRB’s position. An employee does not need to be represented by a Union to claim retaliation for engaging in “concerted activities.”
A settlement has been reached in a case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page. The NLRB’s Hartford regional office issued a complaint in the case of American Medical Response of Connecticut Inc. and International Brotherhood of Teamsters, Local 443, NLRB Case No. 34-CA-12576 on October 27, 2010. The NLRB complaint alleged that the discharge violated federal labor law because the employee was engaged in protected activity when she posted comments about her supervisor, and responded to further comments from her co-workers.
The NLRB complaint against American Medical Response of Connecticut, Inc. (“AMR” or “company”) alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. The company’s blogging and internet policies prohibited employees from posting pictures of themselves or anything involving a corporate logo or uniform depicting the company, in any way, without prior written approval from a high level company official. In addition employees were “prohibited from making disparaging, discriminatory or defamatory remarks when discussing the Company or the employee’s superiors, co-workers and/or competitors.”
The employee was asked to prepare a written incident report concerning a customer complaint about her work. At the time of the request, the employee requested union representation which was denied. The employee completed the report as requested. Later that day from her home computer, the employee posted a negative remark about her supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings and because such postings violated the company’s internet policies.
The NLRB complaint alleged that the Facebook postings constituted “concerted activities with other employees criticizing [the company’s] supervisor  on her Facebook page.” By terminating the employee, the company interfered with, restrained and coerced employees in the exercise of their rights under the National Labor Relations Act. The NLRB complaint also alleged that AMR had illegally denied union representation to an employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.
Under the settlement, the company agreed to revise its internet and blogging policies to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work. The company agreed it would not discipline or discharge employees for engaging in such discussions. In addition, the company promised that employee requests for union representation would not be denied in the future.
What does this mean for employers?
Employers seeking to regulate the conduct of its employees on the internet and at social media sites must beware. The NLRB appears to be taking the position that employees may use social network sites to discuss any matter relating to wage, hours, and working conditions. THE NLRB’S POSITION ON THIS ISSUE DOES NOT ONLY AFFECT UNIONIZED EMPLOYERS: IT AFFFECTS VIRTUALLY ALL PRIVATE SECTOR EMPLOYERS THAT ENGAGE IN INTERSTATE COMMERCE. Rules and policies that curtail the use of such sites to discuss company matters must be carefully scrutinized in light of the NLRB’s position. Moreover, neither the complaint nor settlement shed any light as to whether any reasonable restrictions may be placed on this activity by employers. Clearly employers have a legitimate interest in protecting their corporate image and brand; however, in this matter, the NLRB appears to ignore this compelling interest.
Employers must review their internet and blogging policies and practices, and employers that do not yet have such policies should consider developing them. In addition, managers should be trained in the proper handling of situations in which employees complain or criticize them either on social networking sites or elsewhere.
Public employers should also be aware that the First Amendment may be implicated by an employee’s posting of comments on a social networking site or internet, as well as any company policies that restrict the employee’s ability to post public comments while he or she is off duty. Accordingly, in addition to possible labor law violations, public employers who discipline or retaliate against employees who publicly post comments may find themselves potentially liable in a lawsuit alleging violation of First Amendment rights. Further, it is not uncommon for the New York State Public Employment Relations Board to follow the NLRB on matters of developing law.
If you have any comments or questions regarding the above case and its impact on your organization’s operations, please contact any of our attorneys in the Labor and Employment Practice Group.