Status Update

NLRB: Employees May Complain About Their Employers on Facebook

Kimberly Klimczuk, ESQ.

Kimberly Klimczuk, ESQ.

It’s not surprising, but it’s official. The National Labor Relations Board has taken the position that criticizing one’s employer on Facebook or other social-networking sites constitutes protected concerted activity under the National Labor Relations Act.
Over the past several years, as Facebook and other social-networking sites have increased in popularity, employers have become concerned about the potential implications of their employees’ use of such Web sites. Social-networking sites tend to foster a very casual atmosphere, and such an atmosphere often leads to interactions that employers feel are inappropriate. Facebook status updates like “my job sucks” or “I hate my boss” (or worse) are not uncommon. Understandably, employers want to discourage employees from broadcasting negative comments about them to the Web, and many employers have adopted social-networking policies for employees to follow in their use of these sites.
One such employer is American Medical Response of Connecticut. AMR created a policy prohibiting employees from representing AMR “in any way” on social-networking sites. It also prohibited employees from making disparaging comments about the company or the employees’ superiors or coworkers.
Accordingly, when an employee posted comments on Facebook complaining about her supervisor, AMR fired the employee. The employee had posted the complaint about her supervisor on her Facebook wall, and other co-workers saw the message and posted follow-up comments, creating a situation where employees were having a discussion about the supervisor. The National Labor Relations Board filed a complaint against AMR, alleging that its termination of the employee violated the employee’s right to engage in protected concerted activity.
Section 8 of the National Labor Relations Act provides, among other things, that it is an unfair labor practice for employers to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Among the rights guaranteed in Section 7 is the right for all employees, whether unionized or non-unionized, to engage in concerted activity for the purpose of “collective bargaining or other mutual aid or protection.” This means that employers may not prohibit their employees from discussing with co-workers their wages or other terms and conditions of employment, such as benefits, work hours, or assignments.
The NLRB traditionally has interpreted employees’ Section 7 rights very broadly. For example, under the National Labor Relations Act, employers may not enact confidentiality policies that require employees to keep secret their wages or benefits, and the NLRB has held that even a general confidentiality provision that makes no reference to wages or working conditions constitutes a violation of the National Labor Relations Act if an employee reasonably could interpret the confidentiality provision to include information concerning wages or other working conditions.
Given the NLRB’s broad interpretation of employees’ rights to engage in protected concerted activity, the NLRB’s position regarding employees’ social-networking activity is not surprising. The NLRB has taken the position that AMR’s termination of an employee for complaining about her supervisor on Facebook was a clear case where an employer took action against an employee for discussing the terms and conditions of her employment. According to Lafe Solomon, the NLRB’s acting general counsel, “this is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
The NLRB also has suggested that merely having a general policy prohibiting employees from making disparaging comments about the company violates the National Labor Relations Act, because it interferes with the right of employees to discuss their working conditions with each other.
An administrative law judge is scheduled to hear the NLRB’s case on Jan. 25. Although we expect the employee’s conduct in this case to be protected by the NLRA, there may be circumstances in which an employee’s Facebook activity is not protected by the NLRA, such as when the employee’s comments are not shared with any co-workers, or when the employee makes false (i.e., defamatory) statements about his or her employer.
Still, employers should review their social-networking policies to determine whether they could be interpreted to interfere with employees’ rights to discuss wages and working conditions, and, if so, they should revise their policies accordingly. Employers who are uncertain as to whether their social-networking policies would run afoul of the National Labor Relations Act should consult with labor and employment counsel. n

Kimberly A. Klimczuk, Esq. is a partner at Royal LLP, a women-owned law firm that exclusively represents management in all aspects of labor and employment law; (413) 586-2288; kklimczuk@rkesq.com

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