|
Recently, in a matter that has come to be prominently known as the "Facebook Firing” case, the National Labor Relations Board "NLRB" alleged that an employer violated federal labor law when it terminated an employee for posting negative comments about her supervisor on Facebook. The NLRB's theory was that the employee's online posting and subsequent responses by her coworkers constituted “protected, concerted activity” - discussing terms and conditions of work with other employees - for which the employee could not be disciplined. Additionally, the NLRB alleged that the employer's underlying rules regarding internet postings were overly broad and unlawful in that they prohibited employees from engaging in such activity.
Although the case ultimately settled in February, it was a shot across the bow for employers whose social media policy contains similar language and indicates, generally, that employees will now be afforded greater protection for what they post online. NLRB cases typically deal with employers who have some sort of union presence, but the concept of protected, concerted extends to both union and non-union employers alike. To that end, as discussed below, the “Facebook Firing” case has significant practical consequences for all employers.
Facebook Posting at Issue
A medical technician was asked by her employer to prepare a response to customer complaints about her work. Angered by this request, the employee took to her home computer and posted on her Facebook page that she “loves how the company allows a 17 to become a supervisor,” referring to the employer’s code for a psychiatric patient. The employee also used several vulgarities and described her supervisor as a “scumbag.” These comments drew responses from a number of the employee’s coworkers and led to similar postings about the supervisor.
The employer’s position was that the offensive comments posted by the employee were not protected by the National Labor Relations Act. Regardless, the employer contended, the employee was not terminated for her Facebook postings, but, instead, was discharged based on “multiple, serious complaints” about her behavior. The NLRB’s position, on the other hand, was that the employee was indeed terminated for her postings, which was unlawful because employees are permitted to discuss terms and conditions of their employment (including discussions about their supervisors) with coworkers.
The Employer's Allegedly Overbroad Policies
The employer here, like many employers, maintained rules regarding blogging, internet posting, and communications between employees. Specifically, the policy language that was the subject of the “Facebook Firing” case read:
-
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 . . . in advance of the postings; and
- Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers, and/or competitors.
The NLRB argued that this language improperly restricted employees from discussing their wages, hours, and working conditions with other employees while not at work. General policies of standard or conduct, like the ones above, may run afoul of federal labor law if they tend to have a “chilling” impact on protected, concerted activity.
Settlement of the Case and What This All Means
The day before the scheduled hearing, the NLRB announced that it had approved a settlement, under which the employer agreed to:
(1) revise its policies;
(2) ensure that its rules do not improperly restrict employees from engaging in protected, concerted activity; and
(3) not discipline or discharge employees for engaging in discussions about terms of employment. While this settlement has no precedential value, the case signals the NLRB’s intention to protect employees’ social networking activity even if such activity, on its face, appears to push the envelope.
In light of the “Facebook Firing” case, then, employers should review their social media policies to determine whether they potentially restrict employees from discussing wages, hours, and working conditions. These policies should not prohibit individuals from identifying themselves as employees of the employer or from making comments regarding their employment. The safest course of action would be to carve out employees’ rights to engage in protected, concerted activity from any existing policies through the use of a disclaimer. Moreover, before taking disciplinary action based on social media policies, employers should carefully consider the nature of the employee’s activity and if it could be construed to be protected.
© 2012 Andrews Kurth LLPAbout the Author
