Discipline for Facebook Comments May Violate Employee's Rights
2010-11/12  Dean R. Dietrich and Jeffrey T. Jones   Printer Friendly PDF Version

The National Labor Relations Board (NLRB) recently filed an unfair labor practice complaint against a Company alleging that the Company has an overbroad Internet and blogging policy that interferes with an employee’s right to engage in protected activity.  In a complaint filed against American Medical Response of Connecticut, Inc., the NLRB has alleged that the Company’s policy, which bars employees from making disparaging remarks about the Company or their supervisors, is a violation of an employee’s rights under the National Labor Relations Act (NLRA).  The NLRA gives employees a federally protected right to form unions and prohibits employers from punishing employees – whether union or non-union – from discussing working conditions or unionization. 

In  the pending NLRB matter, an employee was fired for negative remarks (including vulgar language) made about her supervisor on the employee’s private Facebook page.  It is alleged that the employee also wrote, “love how the company allows a 17 to become a supervisor.”  17 is the Company’s lingo for a psychiatric patient.   

The remarks were originally posted by the employee after the Company refused to provide her with union representation during the investigation of a consumer complaint against the employee.  The remarks drew supportive comments and responses from some of the employee’s co-workers.   

The NLRB maintains that an employee’s remarks about the employer’s supervisor and company are generally protected activity and that employers are violating the law by punishing workers for such statements.  The NLRB’s acting General Counsel said: 

This is a fairly straightforward case under the National Labor Relations Act – whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that. 

The unfair labor practice complaint is in its initial stages.  An Administrative Judge is scheduled to hear the case on January 25, 2011.  It may be found that the NLRB is overreaching in its complaint.  However, the case shows the importance of having a carefully worded company policy regarding Internet and social media usage.  Employers should review their internet and social media policies to ensure they are not susceptible to an allegation that their policy would “chill” employees in the exercise of their lawful rights to discuss wages, working conditions, and unionizations. 

Please feel free to contact Dean Dietrich or Jeff Jones, the authors of this article, or any of the attorneys in the Employment, Labor & Benefits Practice Group of Ruder Ware: Ron Rutlin, Mary Ellen Schill, Chris Toner, or Sara Ackermann if you have any questions with regard to this article.

© 2010 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
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