This essay first appeared on CyberLaw Currents, a Frankfurt Kurnit e-commerce and technology law blog
If your company regulates what employees can post on Facebook, Twitter, LinkedIn, and other social networking sites, then you'll be interested in a recent complaint filed by the National Labor Relations Board (NLRB).
In what labor officials and lawyers view as a ground-breaking case, the NLRB has accused American Medical Response of Connecticut, Inc. (AMRI), an ambulance company, of illegally firing an employee after she criticized her supervisor on her Facebook page. According to the complaint, employers that punish workers for such statements may violate The National Labor Relations Act (NLRA). The NLRA protects the rights of workers to communicate with each other about wages, hours, and other employment conditions — even if those workers are not unionized. The NLRB's press release summarized what happened:
When asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation from her union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings and because such postings violated the company's internet policies.
The NLRB charges that AMRI's "Blogging and Internet Posting Policy" violates the employees' right to engage in "protected concerted activity". According to the complaint, the policy stated that:
Employees are prohibited 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; Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.
This is the first time the NLRB has taken the position that employee criticism of management via social media may be a protected activity, and the case has drawn the attention of the New York Times, The New York Daily News, the Legal Times, and other media.
The case suggests the NLRB may pursue even private sector, non-union companies that have overly broad social network policies — even in the absence of an unlawful termination. But what exactly is an "overly broad" social networking policy? Previous NLRB opinions suggest that not all social media posts that criticize management are protected — only those that "involve protected concerted activity or union activity." The challenge for employers lies in interpreting what "protected concerted activity" is, formulating appropriate policies, and then correctly applying those policies to employees' online statements.
The NLRB defines "concerted activity" as the activities of two or more employees attempting to improve working conditions, such as wages and benefits. Examples include:
"a) 2 or more employees addressing their employer about improving their working conditions and pay;
b) 1 employee speaking to his/her employer or the public on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) 2 or more employees discussing pay or other work-related issues with each other."
The Board has also held that employers may not discipline an employee based on Web site statements regarding terms or conditions of employment, or an ongoing labor dispute, even if the connection to the labor dispute is arguably attenuated.
At a minimum, employers should consider revising their social media policies to carve out "protected concerted activity or union activity" and should be careful, when applying these policies, to carefully analyze the employees' statements to ensure they do not touch upon labor disputes or other protected issues.
We hope to gain more insight into this issue after the hearing in the AMRI case, currently scheduled for January 25, 2011.
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