This week the National Labor Relations Board (NLRB) announced that a settlement has been reached in a closely watched case involving the firing of an ambulance service employee for posting negative comments about her supervisor on her Facebook page. This case created a buzz among employers throughout the nation. Given the prevalence of social media through platforms such as blogs, MySpace and Twitter, every employer, whether public or private, with or without unionized employees, could have potentially been affected by the outcome of the case.
The ambulance service employee was asked by her supervisor to respond to a customer complaint about her work. The employee then requested union representation which was denied. Later that day, the employee posted negative remarks from her home computer about her supervisor on her personal Facebook page. Her criticisms drew supportive responses from co-workers which caused the employee to post further negative comments about the supervisor. The employer, American Medical Response of Connecticut (AMR), suspended and ultimately terminated the employee on the grounds that the Facebook postings violated the company’s internet policies.
The NLRB’s investigation into this incident resulted in a finding that the employee’s Facebook postings constituted protected concerted activity under the National Labor Relations Act (NLRA) and that AMR’s “overly broad” blogging and internet posting policies interfered with employees’ right to discuss the terms and conditions of their employment with co-workers and others. The NLRB noted that AMR’s policies prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company in any way over the internet without company permission. The NLRB also charged AMR with illegally denying the employee union representation.
Under the terms of the settlement, AMR agreed to revise its policies to ensure that “they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.” AMR also stated that it would not deny employee requests for union representation in the future and that employees would not be threatened with discipline for requesting representation.
Although this case resulted in a settlement, scrutiny of employer social media policies will continue. Jonathan Kreisberg, Regional Director of the NLRB’s Hartford office, told the Associated Press that the Board is looking at a growing number of complaints that explore the limits of corporate internet policies. Thus, we encourage all employers to review their social media policies to ensure they balance the employer’s needs with the right of employees to discuss working conditions regardless of whether their employees are represented by a union. While not covered by the NLRA, speech by non-unionized employees still raise constitutional issues relating to privacy and free speech. Employee speech may also be protected by federal and state anti-retaliation laws relating to whistleblowers. Finally, California employers are prohibited from taking an adverse action against employees for disclosing the amount of their wages and working conditions under Labor Code sections 232 and 232.5. While recent California appellate decisions call into question whether these Labor Code provisions apply to public employers, public agencies should err on the side of caution and comply with them until there is a court ruling that expressly excludes public agencies from coverage.