Labor Board Pursues Protection for Employee Social Media Posts

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NOTE: This article should not be construed as legal advice. If you have a legal question, you should consult an attorney.

If an orchestra musician posts a Facebook status update complaining bitterly about the orchestra's resident conductor and questioning the conductor's competence, can that commentary subject the musician to discipline for violation of the employer's social media policy? Recent actions by the National Labor Relations Board (NLRB) Hartford regional office suggest that such discipline would run afoul of the National Labor Relations Act (NLRA).

On October 27, Region 34 of the NLRB issued a complaint against American Medical Response of Connecticut, Inc., alleging that it unlawfully terminated an employee for violating an Internet posting and blogging policy that was unlawfully broad. The employee posted on Facebook a profanity-laced comment about a supervisor, drawing supportive responses from her co-workers. She was terminated for violating her employer's policy prohibiting employees from making disparaging comments about co-workers or supervisors in Internet posts and from depicting the company in any way on the Internet without company permission. In issuing the complaint, the General Counsel (GC) has taken the position not only that the employee was unlawfully terminated for exercising protected rights but also that the policy itself unlawfully interfered with employees' exercise of rights protected by the NLRA.

In addition to granting employees the right to join labor unions and bargain collectively through representatives of their own choosing, Section 7 of the NLRA (29 USC §157) protects employees' right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Among the "concerted activities" protected by the law is employee speech about terms and conditions of employment. Such speech has been found to be "concerted" even when it is directed at only one other employee, fails to elicit a response from others, or is completely independent-so long as its goal is to induce concerted activity or to alter general workplace conditions. It has long been the rule that an employer may not enforce or even maintain a work rule that "would reasonably tend to chill" the exercise of Section 7 rights. In Lafayette Park Hotel, 326 NLRB 824 (1998), for example, the NLRB found an employer's policy that generally prohibited "false, vicious, profane or malicious statements" about the employer had a reasonable tendency to chill protected activity and was therefore unlawful.

The GC's decision to issue a complaint in American Medical Response simply applies the general rule to the not-so-new frontier of social media. As such, it exemplifies both the Board's push to embrace technology (including its recent decision to require electronic posting of remedial notices) and the shifting political landscape of the labor board.

The decision is an about-face from a 2009 GC Advice Memo (Sears Holdings, Dec. 4, 2009), finding that a nearly identical policy could not have been reasonably construed to prohibit Section 7 activities. While the issuance of this complaint does not yet provide a definitive answer, it raises serious questions about the legality of such policies. Notably, the management bar has already responded by counseling employers to carefully review their social media policies to ensure they do not tend to chill employees' exercise of protected rights. …