The National Labor Relations Board's Hartford, Connecticut
office recently issued an unfair labor practice complaint against an
employer after the employer fired an employee who posted derogatory
comments regarding her supervisor on the employee's personal
Facebook page. (American Med. Response of Conn., NLRB Reg.
34, No. 34-CA-12576, complaint issued 10/27/10). In his
Complaint, Acting Region 34 Director John S. Cotter claims that the
employee's Facebook comments were protected speech under
federal labor laws.
The employer, American Medical Response of Connecticut, asked
medical technician Dawnmarie Souza to prepare an investigative
report after several patients complained about her work. Ms. Souza
was upset by this request, and, from her home computer, logged on
to her personal Facebook page and posted: "Looks like I'm
getting some time off. Love how the company allows a 17 to be a
supervisor," referring to the company's code for a
psychiatric patient. Ms. Souza also called her supervisor two
expletives. Ms. Souza's posts drew favorable comments on
Facebook from her work colleagues. Shortly after she posted her
comments, Ms. Souza's employment was terminated. The company
claims that her termination was due to patient complaints, not Ms.
Souza's Facebook postings.
Mr. Cotter's Complaint alleges that the company violated
Section 8(a)(1) of the National Labor Relations Act by interfering
with Ms. Souza's right to engage in "protected concerted
activity." Federal law protects the right of all employees -
regardless of union membership – to discuss the terms and
conditions of their employment. This protected speech includes
discussions with co-workers that are critical of management and
individual supervisors. The Complaint claims that Ms. Souza's
comments relating to her supervisor were protected speech relating
to the conditions of her employment.
The Complaint also claims that the Company's "blogging and
Internet posting policy" is overly broad. The policy prohibits
employees from posting pictures of themselves that depict the
Company without first obtaining permission, and prohibits employees
from "making disparaging, discriminatory, or defamatory
comments when discussing the Company or the employee's
superiors, co-workers and/or competitors." According to the
Complaint, American Medical Response also allegedly illegally
denied Ms. Souza's request for union representation during an
investigatory interview.
According to the Associated Press, the National Labor Relations
Board's Acting General Counsel, Lafe Solomon, compared Ms.
Souza's Facebook posts to discussions around "the water
cooler," observing, "employees have protection under the
law to talk to each other regarding conditions at work."
Although this is the NLRB's first Complaint relating to
Facebook comments, Mr. Solomon cautioned that he expects similar
issues in the future.
The issuance of the Complaint is not a final determination by the
NLRB, and the Complaint has been set for a hearing before an
Administrative Law Judge in January 2011. However,
employers who are considering social media or internet policies
should ensure that their policies do not have a chilling effect on
employees' rights.
To determine whether a policy has a "chilling effect" on
concerted activity, the NLRB examines:
- whether the policy explicitly restricts protected activity;
- whether, from the context of the policy, employees would reasonably construe the policy as prohibiting protected activity;
- whether the policy has been used to discipline employees who have engaged in protected activity; and
- whether the policy was promulgated in response to concerted or protected activity.
For example, in a December, 2009 Memorandum, the NLRB's Office of General Counsel examined Sears Holdings' social media policy, which prohibited the "disparagement of [the] company's or competitors' products, services, executive leadership, employees, strategy, and business prospects." In its non-binding Memorandum, the General Counsel concluded that this policy, when read as a whole, did not have a chilling effect on concerted activity because:
- the policy's prohibition against disparaging the company was placed in the context of other provisions that did not violate employee rights;
- the employer had not used the policy to discipline any employee for engaging in protected activity; and
- the policy was not promulgated in response to concerted or union activity.
Employers should avoid enacting policies that broadly ban employee discussions relating to the company. Instead, employers should ensure that that any restrictions on employee communications are limited and narrowly tailored to legitimate, business-related areas, such as restricting communications that may violate the company's discrimination and harassment policies, confidentiality policies, patient privacy policies, or trade secret and intellectual property policies.
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.
