In November 2010, the National Labor Relations Board (NLRB) announced its plans to prosecute a complaint issued by a Connecticut regional office regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleged that the employer, an ambulance service, maintained and enforced overly broad and restrictive policies regarding blogging and Internet postings outside of work.
The incident on which the NLRB’s complaint was based began when an 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, ultimately determining that the Facebook postings were “concerted activity,” protected by federal law. 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, and the NLRB argued that restricting an employee’s personal use of Facebook and the Internet to communicate with co-workers outside of work was a violation of Section 7.
On February 7, 2011, the NLRB announced that a settlement between the employer and the NLRB had been approved. The terms of that resolution include a revision of the company’s policies to ensure that they do not improperly restrict the rights of employees to discuss wages, hours, and other working conditions. The company also has agreed that it will not discipline or fire employees for engaging in such activity in the future. It should be noted that the company’s position throughout this matter has been that the individual who authored the Facebook postings was fired “based on multiple, serious complaints about her behavior,” and not simply because of the postings. The settlement of this matter includes a separate, private settlement between the company and the individual employee, the terms of which have not been made public.
Both union and non-union employers should recognize that 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, 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 discussing the personal character of a particular supervisor.
While this case was resolved without a public hearing and, it is presumed, to the mutual satisfaction of the parties, employers who implement restrictive policies related to employee interaction and communication risk the high-profile, expensive, and disruptive circumstance in which this company found itself. Therefore, companies should take care to draft employment policies that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to effect positive change in the terms and conditions of the workplace.
