Media frenzy over NLRB complaint against Connecticut employer for terminating employee who criticized employer on Facebook not warranted—yet
On October 27, 2010, National Labor Relations Board (NLRB) Region 34 (Hartford, Connecticut) issued a complaint against American Medical Response of Connecticut, Inc., for terminating an employee who criticized her supervisor on her Facebook page. The NLRB issued a press release regarding the matter on November 2, 2010, and held a live television interview with NLRB Acting General Counsel Lafe Solomon on the same day. The filing of the complaint has attracted significant national media attention, even though a substantive hearing will not occur until January 25, 2011.
One of the key issues in this case is the lawfulness of the Blogging and Internet Posting Policy in AMR’s Employee Handbook. As detailed in the complaint, part of that policy states:
- “Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting;
- Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”
The complaint alleges that, on November 8, 2009, AMR employee Dawnmarie Souza “engaged in concerted activities with other employees by criticizing [an AMR supervisor] on her Facebook page,” and that, on December 1, 2009, AMR terminated Souza’s employment because that criticism violated its Blogging and Internet Posting Policy.
The press release indicates that Souza posted negative comments about her supervisor on Facebook from her home computer, and that her comments drew supportive responses from her co-workers. The press release also indicates that the NLRB’s investigation found that Souza’s Facebook postings constituted protected concerted activity, that AMR’s blogging and Internet posting policy contained unlawful provisions, and that such provisions interfered with employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act.
Section 7 protects the rights of employees to form, join, or assist labor unions; bargain collectively through representatives of their own choosing; engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and refrain from any of these activities. The NLRA applies to both unionized and non-union employers.
The issuance of the complaint sparked a national media frenzy, particularly regarding an employee’s right to disparage her employer via social media, and the employer’s right to terminate an employee’s employment for doing so. However, this media frenzy is not yet warranted—the complaint contains allegations only, a hearing on the matter has not been held, no decision from the administrative law judge will likely issue until mid-to-late 2011, and no reviewing decision from the NLRB will likely issue until 2012.
The board’s eventual decision will provide guidance on the application of the NLRA to new communication platforms. Currently, the only formal social media-related guidance from the NLRB is an Advice Memorandum by the NLRB Associate General Counsel, Division of Advice, issued December 4, 2009, in Sears Holdings (Roebucks), Case No. 18-CA-19081. The Associate General Counsel recommended dismissal of a pending unfair labor practice charge, concluding that the employer’s social media policy did not violate its employees’ Section 7 rights. The policy in question prohibited employees from discussing “in any form of social media” the “[d]isparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” At the time that the social media policy was implemented, Sears employees were routinely using Yahoo! Groups to discuss an ongoing union organizing campaign and other work-related concerns. They were unsure whether this use violated the employer’s social media policy, but felt that the social media policy infringed upon their freedom of expression.
The AGC found that, taken in context with the rest of the employer’s social media policy (which prohibited, according to the AGC, other “plainly egregious conduct”), the prohibition in question could not reasonably be construed to apply to Section 7 activity. The AGC stated: “Taken as a whole, the [social media policy] contains sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions.”
The standard applied in the Advice Memorandum was whether: (1) employees would reasonably construe the prohibition in question to apply to Section 7 activity, (2) the rule was promulgated in response to union activity, or (3) the rule had been applied to restrict the exercise of Section 7 rights. In the Sears case, there was no allegation that the rule was instituted in response to the organizing campaign or that any employee had been punished for comments made on the Yahoo! Groups page. In context, the AGC concluded that employees would not reasonably construe the policy to prohibit Section 7 activity. It is important to note, however, that current Board Chairman Wilma Liebman would likely apply a much-stricter standard: whether an employer’s rule could possibly chill employees’ exercise of their Section 7 rights. See Guardsmark, LLC, 344 NLRB 809, 813 (2005)(Liebman dissent).
The current case alleges that AMR applied its rule to restrict the exercise of employees’ Section 7 rights by terminating Souza. AMR’s Blogging and Internet Posting Policy contains language commonly found in employer social media policies and, while an eventual decision in the AMR case could deem that language unlawful because it interferes with employees’ Section 7 right to engage in protected concerted activity, no such language has yet been struck down, and employers are not required to scramble to revise their social media policies at this point.
One interesting aspect of the AMR case will be whether there is evidence that Souza intended to communicate with other employees when she posted comments on Facebook. Unlike the Yahoo! Groups page at issue in Sears, Souza’s Facebook page presumably was not accessible only to AMR employees. By issuing a complaint in this case, the board may be looking for an opportunity not only to announce a stricter standard for assessing employee speech, but also to broaden the concept of what types of activity are “concerted.” For example, if an employee posts a comment on a social networking site as a means of communicating with others—including friends, family, co-workers, etc.—and that statement becomes protected as soon as a co-worker comments on it, then the “protected” nature of the activity would depend not on the employee’s actions or intent at the time of the speech, but on others’ actions after the speech. If this is the rule the board is seeking to announce, it would change the landscape of employee communications under the NLRA, and would make it extremely difficult for employers to implement or enforce any non-disparagement aspect of a social media policy.
Ultimately, the AMR case will offer the current board an opportunity to consider whether and how employers may restrict their employees’ electronic communications, including via social media. The case will be heard before an NLRB Administrative Law Judge on January 25, 2011. Please stay tuned for further developments.