Labor law attorneys at Littler Mendelson have been predicting for months that the National Labor Relations Board, now dominated by Obama appointees, would take aim at employer policies that could be applied to restrict employees’ use of social media for purposes protected by the National Labor Relations Act.  In what appears to be the first shot in an approaching battle, the NLRB’s Office of General Counsel issued a press release on November 2, 2010, announcing that the Board’s Hartford Regional Office had filed a complaint alleging that American Medical Response of Connecticut, Inc. (AMR) violated the NLRA by terminating an employee for posting negative comments about her supervisor on her Facebook page.

According to the Hartford Region’s complaint, AMR denied the employee’s request for union representation made after her supervisor asked her to prepare an investigative report concerning a customer complaint about her job performance.  Later that day, the employee, using her home computer, made negative comments about her supervisor on her Facebook page.  Coworkers who visited the page posted comments supportive of the employee and critical of the supervisor.

Like many companies, AMR has a social media policy that prohibits employees from disparaging supervisors in social media posts, even when posting while off-duty and using a personal computer.  More specifically, AMR’s policy provides as follows:  “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.”  Although the complaint is silent on this point, it appears that unlike some employers, AMR did not include in its policy a statement that the policy would not be construed or applied in a manner that interferes with employees’ rights under the NLRA.

The NLRB’s complaint charges that AMR’s application of its policy unlawfully interfered with the employee’s right under Section 7 of the NLRA to engage in “concerted, protected activity,” i.e., to communicate with coworkers about the terms and conditions of employment.  Notably, Section 7 protects employees regardless of whether their workplace is unionized.  The NLRB’s complaint also is noteworthy because it appears to allege, at least implicitly, that merely having in place an anti-disparagement policy, like AMR’s, violates Section 7 even if the employer does not actually apply the policy to impose discipline.

Whether AMR ultimately will be found to have violated the NLRA is very much an open question.  While current labor law does hold that a work rule or policy which prohibits all criticism of an employer is presumptively invalid, the law is equally clear that employers do not violate the NLRA by disciplining employees whose negative comments rise to the level of disparagement or disloyalty.  Indeed, an NLRB General Counsel’s advice memo from December 2009 supported the legality of an employer policy prohibiting “disparagement” of the company or its officers and employees in any form of social media.  That policy, the General Counsel advised, provided sufficient examples and explanation for “a reasonable employee to understand that it prohibits online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints.”

Given the novelty of the issues raised by the Hartford Region’s complaint and the current state of labor law, employers need to tread cautiously before taking adverse action against an employee for posting negative comments about the employer on social media sites, particularly when the employee’s conduct might constitute protected, concerted activity.  Employers also need to evaluate whether to revise policy language similar to AMR’s now, to wait until the issues raised by the Hartford Region’s complaint are resolved, or to take a middle course.  The middle course would entail adding language to the social media policy (if not present already) explaining that the policy will not be construed or applied in a manner that interferes with employees’ rights under Section 7 of the NLRA.

This entry was written by Philip L. Gordon.

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