Uncertainty in Employer Social Media Policies

Insight January 26, 2011

The NLRB created significant uncertainty regarding the appropriate scope of social media policies when it filed a complaint that alleges a company violated the National Labor Relations Act by terminating an employee for posting negative commernts about her supervisor on the employee's personal Facebook page.

            A case that labor law experts predicted would set important precedent regarding employer policies that restrict employees' use of social media may instead be headed for settlement.  The parties in the action brought by the National Labor Relations Board (NLRB) against American Medical Response of Connecticut, Inc. (AMR) postponed a hearing set for October 25, 2010 while the two sides discuss a possible settlement.  

            On November 2, 2010, the NLRB issued a press release announcing it had filed a complaint against AMR.  The complaint alleges that AMR violated the National Labor Relations Act (NLRA) by terminating an employee for posting negative comments about her supervisor on her personal Facebook page. 

            According to the complaint, AMR denied the employee's request for union representation made after her supervisor asked her to prepare an investigative report concerning a customer complaint about her job performance.  That evening, the employee posted negative comments about her supervisor on her Facebook page using her home computer.  Coworkers who visited the page posted comments supportive of the employee and critical of the supervisor.

            Like many companies, AMR has a social media policy that prohibits employees from making disparaging remarks when discussing the company or the employee's superiors, co-workers, or competitors.  The policy also bars employees from depicting the company "in any way" on Facebook or other social media sites in which they post photos of themselves. 

            The NLRB contends AMR's policy unlawfully interfered with the employee's rights under Section 7 of the NLRA which gives workers a federally protected right to form unions and prohibits employers from punishing workers, whether union or nonunion, for discussing working conditions or unionization.  Claiming AMR's social media policy was "overly broad," the NLRB contends it improperly limited employees' rights to discuss working conditions among themselves.

            Against a rapidly changing legal landscape, the eventual fate of this action is highly uncertain.  While current labor law supports the contention that an employment policy that prohibits all criticism of an employer is presumptively invalid, numerous cases suggest employers do not violate the NLRA by disciplining employees whose negative comments constitute disparagement or disloyalty.  Further, in December of 2009, the NLRB issued an advice memorandum supporting the legality of an employer policy prohibiting "disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” after finding the policy could not be reasonably viewed by an employee as chilling protected activity.  The apparently contradictory stance of the NLRB might reflect changes in the makeup of the Board itself, since Obama appointees are widely regarded as more pro-union.  Regardless of political views, the implication for employers is to review the scope of their current policies. 

            This is the first case in which the NLRB has argued that workers' criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.  As such, it has created significant uncertainty regarding the permissible scope of an employer's social media policy.  Regardless of the ultimate outcome of this action, all private sector employers, unionized or not, should review their electronic use and social media policies to ensure any restrictions on communications about the company are appropriately tailored to areas the company can legitimately restrict.  As an additional safeguard, employers may wish to include language in their policy explaining that the policy will not be construed or applied in a manner that interferes with employees' rights under Section 7 of the NLRA.        

             For more information, please contact a member of the firm's employment law group at http://www.rimonlaw.com/practice/employment-law.