Application of Social Networking Policies Can Violate The Law
By Renisa A. Dorner
Cooper & Kowalski
Under the National Labor Relations Act (NLRA), nearly all non-supervisory employees are guaranteed the right to engage in protected concerted activity. In a case filed by the National Labor Relations Board in October 2010, the Board charged an employer with an unfair labor practice because the company discharged an employee for making disparaging comments about her supervisor on her Facebook page. The Board also claimed the company's social media policy was overly broad and interfered with its employees' right to engage in protected concerted activity. See In re American Medical Response of Connecticut, Inc.,Case No. 34-CA-12576 (filed October 27, 2010).
As background, the employee in question was asked to prepare a response to a customer's complaint about her work. The employee apparently was unhappy because the company refused her request to have a union representative help her prepare the response. Later that day from her home computer, the employee posted negative comments about her supervisor on her Facebook page. Co-workers viewed her page and posted comments supporting the employee and criticizing the supervisor. As expected, the supervisor discovered that these comments had been posted on Facebook and the employee was terminated.
The NLRB claimed the employee engaged in concerted activity with other employees when she criticized her supervisor on her Facebook page. Thus, the company violated her Section 7 right to engage in such activity when it fired her for these postings. Additionally, the Board claimed the company's Blogging and Internet Posting Policy, which prohibits employees from "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors" and from "posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting" is overly broad and interferes with employees' exercise of their Section 7 rights.
The case was settled shortly before the scheduled Board hearing. Although the full terms of the settlement were not disclosed, in a press release issued February 7, 2011 the NLRB stated that the employer has agreed "to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions." According to the press release, the company "also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation." It is unclear as to whether the employee was reinstated as the employee reached a separate, private agreement with the company concerning the discharge.
While this case has settled, it certainly won’t be the last time an employer's social networking policy is challenged as an unfair labor practice. Practically speaking, the term “disparaging” appears to be the overly broad term used by the employer in its policy that caused the NLRB to take action as such could be interpreted to include an employee’s rights under Section 7. However, requiring employees not to be discriminatory or defamatory on its face seems appropriate since such are legally defined terms. While not every comment is protected under Section 7, the Board interprets this provision broadly and it applies to all employees covered by the NLRA, not just those in unionized workplaces. Employers might also want to consider including a statement that the provisions of the social media policy will not be construed or applied in a way that interferes with employees' rights under applicable law.
