The National Labor Relations Board (“NLRB” or “Board”) recently issued a complaint against a Connecticut ambulance service accusing it of illegally discharging an employee for posting negative comments about her supervisor on her Facebook page. The NLRB also challenged the employer’s blogging and Internet policy, asserting that it chills employee rights under the National Labor Relations Act (the “Act”). The Act protects the right of all workers, both union and non-union, to communicate with one another about wages, hours, and other terms and conditions of employment, and prohibits employers from taking action against employees for having engaged in such “protected concerted activity.”
According to the NLRB’s complaint, Dawnmarie Souza was asked to prepare an incident report after the company received a customer complaint about her. A supervisor denied Ms. Souza’s request for assistance from her union, Teamsters Local 443, in completing the report. The Board also alleges that the supervisor threatened Ms. Souza with discipline because of her request for union representation.
Later that day, on her own time and using her own computer, Ms. Souza posted negative comments about the supervisor on her Facebook page. In support of Ms. Souza, her coworkers also posted negative comments about the supervisor on the same page. The company discharged Ms. Souza just three weeks later, and the NLRB claims it did so because she violated the company’s Internet policy. The employer, however, contends that it discharged Ms. Souza based on several serious complaints about her behavior.
Following an investigation, the NLRB’s Hartford office determined that the Facebook postings were “protected concerted activity.” In addition, the Board viewed the company’s Internet and blogging policy, which barred employees from making disparaging remarks when discussing the company or a supervisor and which prohibited employees from depicting the company online without company approval, as a violation of the Act. An NLRB administrative law judge is set to hear the case in January.
Until a decision is rendered, all facts relating to this case, including the company’s Internet and blogging policy, will not be publicly available. The Board’s position, however, is that the policy chilled employees’ rights under the Act by barring employees from making any disparaging remarks or depicting the company in any way on the Internet without prior permission. Such policies are bound to be viewed as overly restrictive by the Board, especially because employees would generally be protected if they engaged in the same sort of behavior on their own time in any public forum.
This is not the first time that the Board has closely examined whether a social media policy infringes upon employee rights. On December 4, 2009, the NLRB’s Office of General Counsel issued an Advice Memorandum analyzing a social media policy adopted by Sears Holdings, which prohibited employees from using social media to disparage “a company’s or competitor’s products, services, executive leadership, employees, strategy and business prospects,” to discuss confidential and proprietary information, or to make explicit sexual references. The Office of General Counsel found this policy was permissible because a reasonable employee, viewing the policy as a whole, would not believe it limited conduct protected by the Act.
Every employer, whether it has a union or not, is now on notice that the NLRB will focus on examining employers’ efforts to limit employees’ use of social media, challenging those it views as likely to chill employee rights to act together to complain about or address work issues. Employers should thus analyze their social media policies to ensure that employee restrictions are not so broad as to interfere with or chill such employee rights. While an employer can restrict disclosure of confidential and proprietary information and require compliance with its harassment policy, it cannot prohibit employees from discussing the employer with other employees on social media sites, at least not where such discussion could be “concerted activity” protected by the Act.
