NLRB Says Comments On Facebook Constitute Protected Activity

Tuesday, May 31, 2011 - 01:00

In late 2010, the National Labor Relations Board (the "NLRB") issued a controversial complaint regarding workers' rights and personal internet postings, contending that comments on a social networking site constituted protected activity. While the complaint was subsequently settled, the NLRB's pursuit of this claim raises concerns for employers regarding the reach of the National Labor Relations Act (the "NLRA").

The complaint accused an ambulance provider, American Medical Response of Connecticut, Inc. ("AMR"), of illegally firing an employee after she wrote negative comments about her supervisor on her Facebook page. American Med. Response of Conn. , NLRB Reg. 34, No. 34-CA-12576, (Oct. 27, 2010). AMR had asked Dawnmarie Souza, an emergency medical technician, to prepare a report regarding a customer complaint about her conduct. Upset about the request, Souza logged onto her Facebook account from her home computer and posted insulting comments about her supervisor. Her posts drew supportive responses from her co-workers, which led to further negative remarks about the supervisor. AMR suspended and ultimately terminated Souza for violating its blogging and internet posting policy, which prohibited employees from making "disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors."

The NLRB complaint stated that Souza's Facebook postings constituted protected concerted activity and that AMR's policy on internet postings thus interfered with employee rights under the NLRA. The complaint further alleged that AMR unlawfully denied Souza union representation in connection with the customer complaint.

Labor and employment lawyers awaited further developments to see whether discussions on a social networking site would be deemed protected activity, as the decision could have widespread implications for employers. In early 2011, however, the NLRB office in Hartford reached a settlement with AMR. The company agreed to "revise its overly broad policy" so as not to prohibit discussions of wages, hours, and working conditions outside of the workplace and pledged that it would not discipline or terminate employees for engaging in such discussions. Souza reached a separate, private agreement with AMR regarding the circumstances of her termination.Although legal precedent was not created, the settlement reflects the changing landscape of employee-employer relations in the age of social media, suggesting that employer policies that are restrictive of online conduct may be subject to future scrutiny.

American Medical strikes a different tone than guidelines recently issued by the NLRB in a different case, making it all the more surprising to employers. In late 2009, the General Counsel of the NLRB stated in an opinion letter that Sears' social media policy could not reasonably be construed to chill employees' protected activity. Sears Holdings (Roebuck) , 2009 WL 5593880 (N.L.R.B. Gen. Counsel) (Dec. 4, 2009). Under the policy, which union organizers challenged, employees were not permitted to discuss "[d]isparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects" in any form of social media.

The NLRB's recent action against AMR may signal that the agency will challenge employers' broad social media policies. However, the settlement agreement provides little guidance as to how employers can prohibit highly derogatory, disparaging comments like Souza's without, at least according to the NLRB, infringing on protected activity. It also is possible that the agency's decision to issue a complaint against AMR is a case of bad facts making bad law - in the complaint, the NLRB contends that AMR refused the employee's request for union representation and threatened to fire her for making that request. Employers should be aware that the issues raised in the AMR complaint are applicable to both union and non-union workforces. However, employers must balance the need to protect their business and employees from derogatory comments posted on the Internet against the risks of the unsettled law in this area.

Kevin B. Leblang heads Kramer Levin's Employment Law department and concentrates exclusively on representing management on employment law litigation and advisory matters. Robert N. Holzman concentrates exclusively on representing management in employment law matters. He counsels employers regularly regarding the full range of issues that touch on the employment relationship.

Please email the authors at kleblang@kramerlevin.com or rholtzman@kramerlevin.com with questions about these articles.