The National Labor Relations Board (“NLRB”) is the federal counterpart of the Public Employees Relation Board (“PERB”). The NLRB is the body that oversees the administration of federal labor law, and PERB is the body that oversees the administration of California labor law.
Recently, the NLRB prosecuted a complaint brought by its Connecticut regional office regarding Dawnmarie Souza, an emergency medical technician, who was fired by American Medical Response after she criticized her boss on her personal Facebook page. After conducting an investigation into the termination of Souza, the NLRB issued a complaint. The thrust of the NLRB complaint was that the termination was in violation of federal labor law, that the company’s internet usage policy was “overly broad” because it prohibited employees from posting disparaging remarks about the employer and its supervisors, and that enforcement of the policy interfered with employees’ rights to engage in protected activity.
Section 7 of the National Labor Relations Act (“NLRA”) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint. It is noteworthy that California’s Meyers-Milias-Brown Act (“MMBA”) has a similar provision that restricts employers from interfering with employees’ rights to improve the conditions or terms of employment, so this NLRB case is relevant to public agency employers as well.
The NLRB’s investigation determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet usage policy was overly restrictive because it prevented employees from making any negative remarks when discussing supervisors or the company. The matter was set for hearing earlier this year, but the issues were settled before the hearing. The employer agreed to revise its internet usage policy to ensure that it did not restrict employees’ rights to communicate freely about working conditions. Further, the employer agreed to not fire employees for engaging in such activity.
Although it is settled under California labor law that employees have the right to engage in discussions about their wages, hours, and working conditions, this federal NLRA case signals to both union employers that this right goes beyond the actual workplace and extends to employees’ personal Facebook pages. Further, this case serves as a cautionary tale to California public employers of a growing trend to protect employees’ use of the internet as a forum to engage in protected speech activity, even where the speech is less than respectful.
The lesson here is that public agencies should remain sensitive to employees’ right to communicate with one another regarding their wages, hours and working conditions, and their ability to even do this on the internet with the protection of the law. Employers will also want to consider this case when drafting internet usage policies, so as to ensure that such policies cannot be construed as interfering with protected employee rights.