Facebook Posts Might be Viewed by NLRB as “Concerted Activity”

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms and conditions of their workplace and employment.  The National Labor Relations Board (NLRB) regularly has held that an employer’s actions violate Section 7 if those 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 incident began when the employee was asked to prepare a report related to a customer’s complaint about the employee’s work.  When the employee asked for union representation regarding the complaint, the company denied that representation.  Later that day, after leaving work, the employee posted a negative comment about her supervisor on her own Facebook page, using her own home computer to do so.  The comment elicited supportive responses from co-workers, and led to further negative comments from the employee herself.  When the company learned of the comments, it fired the employee, 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 overly restrictive.  

Both union and non-union employers should pay attention to further developments in this situation, particularly because the NLRB’s allegation regarding the company’s internet policy is one that could be brought against 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 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, such activity might even include an online discussion about the personal character of a particular supervisor. 

Employee and employers alike will be watching for a decision after the January 25, 2011 hearing on this matter.