Social Media Policies: Fed Labor Law Problem?

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

In dispute is whether that social media policy – and the company’s actions in enforcing the policy – violated public policy, in particular Federal labor law.  This came into fast relief when the National Labor Relations Board (NLRB) subsequently filed a complaint against the company, charging the company with violations of the employee’s rights under the National Labor Relations Act (NLRA).

The company is American Medical Response (AMR), an ambulance service provider.  The incident followed a customer complaint about the employee’s work, when the employee’s supervisor asked the employee to prepare a report about the incident.  At that point, the employee sought but was denied representation from her union.

Later that day, the employee posted negative remarks about her supervisor and AMR on her personal Facebook page, through her home computer.  It appears that at no time did she use AMR’s technology or services to conduct her actions.

According to the New York Times story about the case, the employee’s grievance – and subsequent social media commentary – related primarily the fact that her supervisor barred a representative of the Teamsters to assist her in preparing her report.

The employee’s Facebook comments sparked an exchange of further commentary by other AMR employees, and further disparaging comments by the employee about the supervisor.  That prompted her suspension and later termination.

Two important things to note about this case:

1. “Concerted Activity” under NLRA.

As the NLRB stated in its press release about the case, “the employee’s Facebook postings constituted protected concerted activity” under the NLRA.  “Protected concerted activities” under the NLRA include the right of employees to “Discuss wages, working conditions or union organizing with co-workers or a union” and “Act with co-workers to improve working conditions by raising complaints with an employer or a government agency”.

Employers may not, among other things, “Fire, demote, transfer, reduce hours or take other adverse action against employees who join or support a union or act with co-workers for mutual aid and protection, or who refuse to engage in such activity.” (emphasis added)

According to the New York Times, this case is the first where the NLRB interpreted its powers to include regulation of employer conduct related to employee activities in social networking.

What is not clear is whether the NLRB would have filed this case – and whether this would have constituted “protected concerted activity” – had the employee’s conduct been limited to solo Facebook complaints, rather than engaging with co-workers and an online community.

2. Social Media Policies Violative of NLRA.

As described in the New York Times, AMR’s policies “barred employees from depicting the company ‘in any way’ on Facebook or other social media sites in which they post pictures of themselves.”  Another policy prohibited “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

According to the NLRB, “Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

This view is troubling if only in the sense that these types of policies and provisions are common for companies adapting to social media.  As Bret Cohen of Hogan Lovells wrote recently about the case, “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.”

The case is set for hearing on January 25, 2011.

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