NLRB Challenges Employers’ Social Networking Policies

NLRB Challenges Employers’ Social Networking Policies

The National Labor Relations Board (NLRB) has recently taken aim at employer policies that restrict employees’ use of social media. In a recent case that could have far-reaching implications, the board’s Hartford Regional Office charged American Medical Response of Connecticut Inc. (AMR) with violating the National Labor Relations Act (NLRA) by terminating an employee for posting negative comments about her supervisor on her Facebook page. The NLRB investigation found that the employer’s social media policy interfered with employees’ rights under the NLRA by prohibiting employees from making disparaging remarks when discussing the company or supervisors and by prohibiting employees from depicting the company in any way over the Internet without company permission.

The NLRB’s Complaint
The NLRB’s complaint alleges that AMR, an ambulance service, illegally terminated one of its employees because she posted negative remarks about her supervisor on her personal Facebook page using her home computer. On the day in question, the supervisor allegedly asked the employee to prepare an investigative report concerning a customer complaint about her work. When the employee asked for union representation, her request was denied. After the employee posted the negative comments on Facebook, her co-workers chimed in with their own comments related to her post, which led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated as a result of the postings, as they violated AMR’s Internet policies.

Like many companies, AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off duty and using a personal computer. Specifically, AMR’s policy states: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

The NLRB’s complaint asserts that AMR’s application of its social networking policy unlawfully interfered with the employee’s right under Section 7 of the NLRA to engage in “concerted, protected activity”—in other words, the right to communicate with co-workers about the terms and conditions of employment. Comments are protected under the NLRA only if they are related to a term or condition of work and are concerted in nature. Comments are “concerted” where they involve more than one employee, thus making the co-workers’ Facebook postings in the AMR case significant. Significantly, Section 7 applies to employees’ protected, concerted activity regardless of whether the workplace is actually unionized. Further, and perhaps most problematically, the NLRB’s complaint appears to allege that merely having in place an anti-disparagement social networking policy, like AMR’s, violates Section 7 even if the employer does not actually apply the policy to impose discipline.

Summarized for this blog.
January 3, 2011
Author: Patrick H. Hicks and Deborah L. Westbrook

The Whitford Group
704 298-2115