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Do Employee’s Comments on Facebook Equal “Protected Concerted Activity”?

The National Labor Relations Board (“NLRB”) has taken an unprecedented position in a case involving an employee who posted negative comments about her employer on a social media site; and employers should pay heed.   The NLRB is the federal agency tasked with enforcement of the National Labor Relations Act (the “Act”), which, among other things, prohibits employers from interfering with employees’ rights to discuss wages, working conditions and unionization (i.e., protected concerted activity).

Recently, the NLRB announced its plans to prosecute a complaint issued by its Hartford Connecticut regional office regarding the termination of an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleges that the company, American Medical Response of Connecticut, Inc., an ambulance service, also denied union representation to the employee during the investigation of the incident.

Specifically, the employee mocked her supervisor on Facebook, including the comment, “love how the company allows a 17 to become a supervisor” (“17” is the ambulance service company’s code for a psychiatric patient). Because co-workers added comments supporting the employee’s comments, it is the NLRB’s position that the terminated employee engaged in concerted activity protected under the Act, thereby making it unlawful for the employer to fire her for that activity.

The Hartford, Connecticut NLRB office recently filed a complaint that alleges, among other things, that the employer acted unlawfully by (1) terminating an employee, who posted negative remarks about her supervisor on her personal Facebook page, and (2) maintaining an overly broad blogging and internet posting policy.

Another lesson for employers within the NLRB complaint is the contention that the company’s blogging and Internet policy contains unlawfully broad language, including:

“Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisors, coworkers or competitors.”

Additionally, the Company policy prohibited depicting the company “in any way” over the internet without permission. The NLRB complaint alleges that the company’s blogging and Internet policy as written violates the Act.

On January 25, 2011, an NLRB Administrative Law Judge (“ALJ”) will conduct a hearing on the matter. Prior decisions would lend support for the Company’s position in this case.  However, the  NLRB composition  has significantly changed since those decisions supporting the employer’s position were rendered. Currently, the NLRB, to which a decision may be appealed, stands at 3 Democrats and 1 Republican member.  Thus, if the employee were to prevail before the ALJ, an appeal to the NRLB with its current composition would likely lead to a less favorable result for employers.

This will likely become a benchmark for social mediation policy drafting.  Employers must exercise caution in both drafting and enforcing social media and other work rule policies. All employers, unionized or not, should review their social media and other work rule policies and determine whether a reading of the policy would reasonably tend to chill employees in their right to discuss unionization and other terms or conditions of employment.



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