December 7, 2021

Volume XI, Number 341

Advertisement
Advertisement

December 06, 2021

Subscribe to Latest Legal News and Analysis
Advertisement

Federal Scrutiny of Social Media Policies - Facebook posting subject of NLRB settlement with employer

On Monday, February 7, 2011, the National Labor Relations Board (NLRB) reached a settlement with American Medical Response of Connecticut, Inc., the employer recently charged by the NLRB with terminating an employee in violation of federal labor law for posting disparaging comments about her supervisor on Facebook. The NLRB complaint alleged that the employer's policy regarding "Blogging and Internet Posting" was overly-broad and unlawfully interfered with employees' rights under Section 7 of the National Labor Relations Act (NLRA) to engage in "concerted, protected activity." As written, the challenged policy stated that "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors."

Under the terms of the settlement agreement, the employer agreed to revise this policy to allow employees to discuss wages, hours, and working conditions with co-workers outside of the workplace, and agreed to refrain from disciplining or firing employees for engaging in such discussions. The matter of the employee's discharge was resolved through a separate, private agreement between the employee and the employer.

Why is this important?

The NLRB's involvement in this case indicates an increased focus on the enforcement of employee rights under Section 7 of the NLRA and on employers' social media policies. Section 7 protects employees regardless of whether their workplace is unionized; therefore all employers must be cognizant of policies and practices that might be interpreted to limit employees' right to engage in concerted action.

Actions needed?

The NLRB's stated position on this issue is that employees are allowed to discuss the conditions of their employment with co-workers on Facebook, or other social media websites, to the same extent they are permitted to do so at the water cooler or a restaurant. To this end, policies or practices which could be interpreted as limiting such right should be modified to include a statement that the policy will not be construed or applied in any manner that interferes with employees' rights under the NLRA.

© 2021 Bracewell LLPNational Law Review, Volume I, Number 40
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Robert Nichols, employer litigation attorney, bracewell law firm, lawyer harassment claims, wrongful discharge case, occupational safety issues
Partner

Robert Nichols represents employers in litigation, administrative actions and arbitrations concerning discrimination and retaliation, harassment, wrongful discharge, occupational safety and health, union-management relations, wage and hour matters, and other concerns related to employment. Mr. Nichols has defended more than 200 employment-related lawsuits in federal and state court, represented employers in more than 300 federal and state agency employment discrimination investigations, and handled numerous Occupational Safety and Health Administration (OSHA) cases,...

713-221-1259
Jim Kizziar, Employment law Attorney, Bracewell law firm in San Antonio TX
Partner

Jim Kizziar is a partner with Bracewell LLP in the firm's San Antonio, Texas, and Washington, D.C. offices. Practicing law since 1978, Mr. Kizziar represents and counsels owners of diverse business entities and management on all aspects of labor and employment law. His practice includes litigation before federal and state agencies and the courts and preventive counseling of management on issues such as discrimination, harassment, union organizing, and wage-hour issues.

Mr. Kizziar conducts employment law training for executives, managers, and...

210-299-3526
Lauren West, Labor, Employment, Attorney, Bracewell law firm
Associate

Lauren West is a member of Bracewell's Labor and Employment group. She represents employers involved in federal and state court litigation and before administrative agencies. Ms. West has experience dealing with employment discrimination and harassment, wage and hour issues, the enforcement of non-compete agreements, and issues relating to reductions in force. In addition to litigation, she counsels employers on compliance with federal and state employment laws and on issues relating to the hiring, retention and termination of employees.

214-758-1605
Advertisement
Advertisement
Advertisement