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November 9, 2010

NLRB Hits on Facebook - Employer Internet Policies are Challenged

The National Labor Relations Board (NLRB) has sent a chilling message to private employers. The NLRB very recently filed a complaint against American Medical Response of Connecticut, LLC that alleges that maintaining and enforcing an overly broad Social Media Policy is unlawful! The use of the Internet and social media like Facebook, MySpace and LinkedIn is almost universal. Many employers have established policies dealing with appropriate employee use of social media both at and away from work. The NLRB's complaint signals that these policies, even when no union is involved and even when no employee is disciplined or discharged, will be subject to challenge.

What the Employee Did

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. 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 her postings violated the company's internet policies.

What the NLRB Alleges

An NLRB investigation found that the employee's Facebook postings constituted protected concerted activity, and that the company's blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.

What the Challenged Company Policies Say

Here are the relevant parts of the company's policies that are being challenged by the NLRB as too broad and unlawful:

Blogging and Internet Posting Policy

  • 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.

Standards of Conduct

  • Rude or discourteous behavior to a client or coworker.
  • Use of language or action that is inappropriate in the workplace whether racial, sexual or of a general offensive nature.

Solicitation and Distribution Policy

  • It is the policy of the Company to prohibit solicitation and distribution by non-employees on Company premises and through Company mail and e-mail systems, and to permit solicitation and distribution by employees only as outlined below.
  • Solicitation of others regarding the sale of material goods, contests, donations, etc., is to be limited to approved announcements posted on designated break room bulletin boards.

What to do

These policies are not at all unusual. Many employers have rules and policies that may be seen by the NLRB as too broad because they would tend to limit or chill employees from communicating with each other about wages, hours and working conditions, including negative comments about management and supervision. Indeed, a recent NLRB case decision held that a non-union employee was unlawfully fired when he literally cussed out the owner of the company during a heated discussion about the employee's compensation. Although the American Medical Response case is not set for trial until late January, 2011, it would be prudent to review any existing Social Media Policies in light of these developments. Consideration might be given to adding language that would make it clear that nothing in the policy should discourage or interfere with employee rights under the National Labor Relations Act. However, until the NLRB makes a definitive ruling, even this carve-out language may not be effective in avoiding litigation.

If you have questions, please contact Stephen W. Lyman (slyman@hallrender.com or 317.977.1422) or your regular Hall Render attorney.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

 
 
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