Facebook Posts May Be "Concerted Activity"

Section 7 of the National Labor Relations Act (NLRA) bars employers from interfering with employees’ efforts to work together to improve the terms and conditions of their workplace. The National Labor Relations Board (NLRB) regularly has held that an employer violates Section 7 if its actions would “reasonably tend to chill employees” in the exercise of their rights under the NLRA.

NLRB Issues Unfair Labor Practice Complaint Against Employer

Section 7 of the National Labor Relations Act (NLRA) bars employers from interfering with employees’ efforts to work together to improve the terms and conditions of their workplace. The National Labor Relations Board (NLRB) regularly has held that an employer violates Section 7 if its actions would “reasonably tend to chill employees” in the exercise of their rights under the NLRA.

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.

The dispute began when Dawnmarie Souza was asked to prepare a report related to a customer’s complaint about her work. Souza requested representation by Teamsters Local 443 regarding the complaint. According to Souza, she was denied representation and was threatened with discipline because of her request.

After leaving work, Souza posted a negative comment about her supervisor on her Facebook page from her home computer. The comment elicited supportive responses from co-workers, and led to additional negative comments from Souza. When the company learned of the comments it fired Souza, stating that the postings violated the company’s Internet policies.

The NLRB investigated the situation and determined that the Facebook postings constituted “protected concerted activity” and that the employer’s Internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors. A complaint was filed, alleging both that the company’s actions violated Section 7 and that its Internet policy was unlawful.

Both union and non-union employers should pay attention to further developments in this area, particularly because the NLRB’s allegation regarding the company’s Internet policy is one that could be brought against virtually any employer on the basis of a written policy, and even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even conduct by a single employee who is attempting to initiate group action. While employees do not have unlimited discretion in choosing their method of activity – they cannot, for example, be “unduly and disproportionately disruptive” – employment policies should be drafted to avoid precluding employees’ ability to act in concert, or to act to effect positive change in the terms and conditions of the workplace. According to the NLRB, protected activity might even include an online discussion about the personal character of a particuar supervisor.

Employers will want to closely watch for the ruling following the January 25, 2011 hearing on this matter. The Employment Law Authority will you keep you up-to-date on any new developments.

Note: This article as published in the November/December 2010 issue of The Employment Law Authority.