PRIVACY IN THE WORKPLACE

On February 7, 2011, the National Labor Relations Board’s Office of the General Counsel announced that a settlement had been reached in the widely-discussed case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page.
 
In October 2010, the NLRB’s Hartford regional office had issued a complaint against American Medical Response of Connecticut, Inc., alleging that its discharge of the employee violated federal labor law because the employee was engaged in protected activity (discussing the terms and conditions of her employment) when she: (a) posted disparaging comments about her supervisor on her Facebook page from her home computer; and (b) responded to comments posted by her coworkers.  The NLRB complaint alleged that the discussion about the supervisor constituted protected concerted activity and that the employer’s blogging and internet posting policy contained unlawful and overbroad provisions, including one that prohibited employees from making disparaging remarks when discussing the employer or supervisors and another that prohibited employees from depicting the employer in any way over the internet without employer permission.  The NLRB complaint also alleged that the employer had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.
 
In its News Release the NLRB states that pursuant to the settlement the employer “agreed to revise its overly broad rules 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.”  The employer also agreed that it “would not discipline or discharge employees for engaging in such discussions.”  Further, the Release notes that the employer “also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation.”  (The employer and employee resolved the allegations involving the employee’s discharge through a separate, private agreement.)
 
As a general matter, the National Labor Relations Act protects employees’ rights to engage in protected concerted activities with or without a union.  Although not a statutorily defined term, “concerted activity” generally has been interpreted to include activities where two or more employees are acting together and attempting to improve working conditions. 
 
The “Facebook firing” complaint marks the first case in which the NLRB has taken the position that an employer could violate the NLRA by having and enforcing an overbroad policy governing social media to restrict employees’ online activities.  There are at least three practical considerations for employers.
 

• Employers who maintain policies governing employee use of social media, internet or electronic systems should review their policies to ensure that their policies are not overly broad and do not inadvertently violate the NLRA. 

 

• Likewise, employers seeking to discipline or terminate an employee for violations of a social media policy should proceed with caution.  

 

• Finally, it is important to note that although this settlement clearly indicates that employers should be careful about overbroad policies and disciplining employees on the basis of social media activity, nothing in this settlement prohibits employers from, or eliminates the need to investigate and act in the case of some social media activity—for example, in the case of harassing or threatening posts about co-workers or supervisors.

 
Please feel free to contact Bullard Law to review or implement a social media policy for your workplace, with any questions concerning employee privacy issues, or any other labor, employment and benefits issues.