NLRB Weighs in on Social Networking – “The Facebook Complaint”

“It’s the same as talking at the water cooler,” said NLRB Acting General Counsel Lafe Solomon. “The point is that employees have protection under the law to talk to each other about conditions at work.”

With that simple statement as reported on the NLRB’s website, the NLRB’s Regional Office in Hartford (Region 34) issued an unfair labor practice complaint against an ambulance company, American Medical Response of Connecticut (AMR), that had terminated an employee for making disparaging remarks about her supervisor, and soliciting comments from fellow employees, in violation of company policy while on her Facebook page at home.

“This is the first complaint we’ve issued over comments on Facebook, but I have no doubt that we’ll be seeing more,” Solomon said. “We have to develop policies as we go in this fast-changing environment.” However, the issue, which is scheduled to be heard by an ALJ on January 25, is not quite that simple.

According to the Complaint, AMR denied the request of an employee for the presence of a union representative at an investigatory interview in which she had reasonable cause to believe would result in disciplinary action. Later that day, after leaving work, she posted a derogatory comment about her supervisor on her own Facebook page on her home computer, and elicited supportive responses from co-workers which led to further disparaging comments about the supervisor from the employee herself. She was thereafter terminated for violating AMR’s non-disparagement policy.

Like many employers, ARM has a social media policy that prohibits employees from disparaging the company and its supervisors on social media posts, even when off-duty and using personal computers. The policy provides:

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

Thereafter, Teamsters Local 443 filed an unfair labor practice charge in the Hartford Regional Office alleging violations of section 8(a)(1) and (3) and the Regional Director issued a Complaint.

Legal Standard: While section 7 of the NLRA protects employees against reprisal for engaging in protected concerted activity (such as talking to fellow workers on their own time about their jobs and working conditions, including remarks critical of supervisors and managers), the company has a right to establish and enforce a policy against disloyal remarks and disruptive conduct that are not protected by section 7. A work rule or policy that prohibits all criticism of an employer is over broad and presumptively invalid, but there are numerous NLRB and federal court decisions that uphold employer discipline where employees engage in disparagement or disloyalty in violation of company policy.

The lead case is Jefferson Standard Broadcasting Co., 346 U.S. 464 (1953). In Jefferson Standard, a union of television technicians in Charlotte had a dispute with their employer, the broadcasting company Jefferson Standard. As part of that dispute the initial peaceful picketing erupted into a series of “vitriolic attacks on the quality of the company’s television broadcasts” by several of its technicians and the distribution of thousands of handbills at local businesses (neutrals) claiming that Jefferson Standard considered Charlotte to be a “second class city” because it did not present any local programs on its Charlotte station. Shortly thereafter, Jefferson Standard terminated the ten technicians responsible for sponsoring or distributing the handbills.

Although the NLRB held that the terminations were an unfair labor practice, the Supreme Court ruled that the terminated employees’ communications were so disloyal as to lose protection under the Act. The Court noted that: the handbills were distributed at a “critical time” in the company’s business; they were a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” According to the Court, “[t]here is no more elemental cause for discharge of an employee than disloyalty to his employer.”

More recently, in Endicott Interconnect Technologies, Inc. v. NLRB, 453 F.3d 532 (D.C. Cir. 2006), the Board had ruled that an employer violated sections 8(a)(1) and (3) when it fired an employee for violating company policy by disparaging the employer. On appeal, the DC Circuit reversed the Board’s decision, holding that applying the Jefferson Standard test, the communication was “so disloyal, reckless or maliciously untrue as to lose the Act’s protection” and justified terminating the employee for cause.

It will be interesting to see how the administrative law judge and the new Board will rule in this case. We expect that it is the start of what we have predicted will be a great deal of attention and latitude toward employee rights in cyberspace.

 Update (Feb. 8, 2011): The NLRB has now announced that it has settled this case with the employer. According to the Board's press release, the employer has agreed to revise its policy to ensure that it does not "improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work" and that employees would not be disciplined or discharged for "engaging in such discussions."

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