Facebook is everywhere and its implications for employers can be
maddening. It is one thing to prevent your employees from using
Facebook while they are at work, but what control do you have over
what your employees say on Facebook when they are not at work?
Surely you can discipline an employee for calling his or her
supervisor a psycho on the World Wide Web? Not according to the
general counsel of the National Labor Relations Board.
On Oct. 27, 2010, the NLRB's Hartford regional office issued a
complaint against a Connecticut ambulance service asserting that
the termination of an employee who bad-mouthed her supervisor on
Facebook, and the policies on which the termination was based, were
illegal under federal law. The employee's comments, which
included a reference to her supervisor as a psychiatric patient,
drew support from co-workers that were her Facebook
"friends." According to the general counsel's
complaint, when the company learned of the employee's online
rants, it suspended and ultimately terminated the employee on the
grounds that her Facebook postings violated the company's
Internet policies. In the General Counsel's view"the
employee's Facebook postings constituted concerted protected
activity, and that the company's blogging and Internet posting
policy contained unlawful provisions, including one that prohibited
employees from making disparaging remarks when discussing the
company or supervisors and another that prohibited employees from
depicting the company in a way over the Internet without company
permission." See News Release, National Labor Relations
Board, office of the general counsel, Nov. 2, 2010. In the
Board's view, such policies "constitute interference with
employees in the exercise of their right to engage in protected
concerted activity." Id.
A hearing in the case is scheduled for Jan. 25, 2011, and it
remains to be seen whether the Board will prevail, but there can be
no question that this is a ground-breaking and potentially
far-reaching development. Non-union employers do not think much
about the National Labor Relations Act, but they should. In
addition to governing employees' union-related activities, the
Act prohibits employers from curtailing employees - union and
non-union – from engaging in concerted protected
activities. This means that employers generally cannot restrict
employees' right to discuss the terms and conditions of their
employment with their fellow employees or anyone else. Under the
Hartford region's complaint, an employee's criticism of her
boss on a social networking site, even if it is derogatory or
vulgar, qualifies as an activity that is protected under the
National Labor Relations Act. Thus, even if you do not have a
union, you could still run afoul of federal law when you discipline
employees for what they say about their job. Moreover, the
Board's complaint contends that the company's objective
policies addressing employees' online activities are unlawful
under the NLRA.
The general counsel's position in this case could easily be
extended to all forms of social media and will apply to unionized
and non-union employees alike. Thus, employers should closely
monitor the outcome of this case and take care to assess the
possible consequences of disciplining or terminating employees for
making statements about their jobs or their bosses online.
Employers should also consider whether or not they need to
implement social-networking policies, or, if such policies are
already in place, reevaluate them to assess whether they are
permissible under the general counsel's view in this case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
