• National Labor Relations Board Takes Aim at Employer’s Social Media Policy
  • November 16, 2010 | Author: Martin Thornthwaite
  • Law Firm: Strasburger & Price, LLP - Frisco Office
  • On October 27, 2010, the National Labor Relations Board (NLRB) issued a Complaint and Notice of Hearing against American Medical Response of Connecticut, Inc. (“Employer”) in response to a charge filed by the International Brotherhood of Teamsters, Local 443, (“Union”) on behalf of a former employee of Employer. The hearing is set for January 25, 2011, and the decision could have far reaching effects on both union and nonunion employers. If the NLRB prevails, employers will need to reexamine their social media policies to ensure they are not overly broad in order to avoid possible NLRB action.

    On November 8, 2009, the employee had asked Employer to allow the Union to represent her during an investigatory review which she believed would result in disciplinary action against her. After the employee’s supervisors allegedly threatened her with discipline because of her request for Union representation, she criticized one of her supervisors on her Facebook page. In response to the employee’s Facebook posting, some of her coworkers also criticized the supervisor and offered support for the employee. On December 1, 2009, Employer terminated the employee because she violated company policy by criticizing her supervisor on Facebook.
    The NLRB claims the employee’s Facebook posting was protected concerted activity with other employees and that Employer’s social media policy violated the National Labor Relations Act (the “Act”).  The Act is designed to protect the rights of workers in both union and nonunion settings by safeguarding discussions about wages, hours, and other terms and conditions of employment, including attempts by employees to improve their work situation. Policies and procedures that “reasonably tend to chill” employees’ rights under the Act will violate the Act.
    Employer’s social media policy states in pertinent part: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” The NLRB claims this provision is overly broad and prohibits communications protected by the Act, thereby “interfer[ing] with employees in the exercise of their right to engage in protected concerted activity.”