The NLRB/Facebook case may have settled, but employer social media policies are still under attack
On February 7, 2011, the National Labor Relations Board announced that a settlement had been reached in the case involving the discharge of a Connecticut ambulance service employee for posting negative comments about her supervisor on Facebook. The NLRB’s complaint against American Medical Response of Connecticut, Inc.—which attracted national media attention—had alleged that: (1) the discharge violated the National Labor Relations Act because the employee was engaged in protected activity when she posted the comments about her supervisor and responded to further comments from her co-workers, and (2) AMR maintained overly-broad rules in its employee handbook regarding blogging and internet posting.
The NLRB indicated that, under the terms of the settlement agreement, AMR would revise its blogging and internet posting policy so as to not “improperly restrict employees from discussing their wages, hours, and working conditions with co-workers and others while not at work.” The NLRB did not, however, release any information regarding how AMR would or must revise this policy. The Board’s eventual decision in this case was expected to provide guidance on the application of the NLRA to new communication platforms; instead, the settlement of this case leaves employers without guidance as to how to craft appropriate social media policies.
The national media attention on the AMR case may have also sparked union interest in attacking employers’ social media policies. On February 4, the Connecticut State Employees Association/SEIU filed an unfair labor practice (ULP) charge (No. 34-CA-12906) against Student Transportation of America, a Connecticut bus company, alleging that the employer violated the NLRA by maintaining and enforcing a policy that prohibits the use of electronic communication and/or social media in any manner that may “target, offend, disparage, or harm customers, passengers, or employees,” or violate any other company policy. The allegations in this ULP charge differ from those in the NLRB’s complaint against ALR in that there is no allegation of improper discipline or discharge of a particular employee. Instead, the ULP charge is an attack on the policy language alone.
In addition, according to a February 10, 2011, article on the Communications Workers of America’s website, the CWA has filed a ULP against T-Mobile for its “restrictive and overly broad policies against employees’ freedom to discuss workplace issues on social networking sites.” The ULP charge itself is not available, but there is no indication from the CWA that improper discipline or discharge of a particular employee is at issue. Again, it is the social media policy itself that appears to be under attack.
These two ULP charges could indicate increased union attention towards employers’ social media polices. In preparation, employers should take a closer look at their social media policies and remove or revise any language that specifically prohibits employees from discussing wages, hours, or working conditions. In addition, employers should consider adding the following language to their social media policies: “Nothing in this Social Media policy is intended to prohibit employees from communicating in good faith about wages, hours, or other terms and conditions of their or their co-workers’ employment.” Such language could save employers from a ULP charge challenging the social media policy itself (but not from a ULP charge challenging any discipline or discharge based on that policy).