Fun and Games with the National Labor Relations Board (NLRB)

A while ago I wrote that companies such as Virgin Atlantic, the Philadelphia Eagles, and Brixx restaurant fired employees for Facebook posts about the company or customers;  and, a Georgia teacher and New England Patriots cheerleader were fired for personal behavior posted on Facebook.  I opined that it’s critical to have a Social Media Policy that makes it clear what you expect from your employees online.

I still believe this is true, but now there’s a caveat – you have to be equally careful about what you don’t say in your Social Media Policy as what you do say.  The National Labor Relations Board (NRLB) has ruled on several cases where employees have been fired for what they said on their Facebook pages, and these rulings contain important information for employers.

A benchmark ruling was the case involving American Medical Response of Connecticut.  An employee was terminated after complaining that the company had asked her to participate in a disciplinary action without the union representatives she requested.  She wrote on her personal Facebook page, “Love how the company allows a 17 to be a supervisor,” referring to the employer’s code for a psychiatric patient, and called her boss a “scumbag as usual.” Her post drew favorable comments from her work colleagues. The company promptly fired her for violating the company’s blogging and Internet posting policy. The policy prohibited employees from “making disparaging, discriminating or defamatory comments when discussing the company or the employees’ supervisors, co-workers and/or competitors.”

The NLRB alleged that the employee’s termination violated section 8(a)(1) of the National Labor Relations Act, which prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under 7 of the NLRA. Section 7 permits employees, regardless of whether they are represented by a union, to engage in protected concerted activities, which includes online discussion by more than one employee that’s in any way tied to working conditions, wages or other terms and conditions of employment.

What does this mean for employers?  The NLRB is pursuing employers with:

–      overbroad policies restricting employee’s social media use

–      employee discipline based on behavior discovered via unlawful surveillance, interrogations or threats

So, you need to make sure that your policy doesn’t try to limit employees’ discussion of wages, investigations or disciplinary action; or prohibit disparagement of the company or its management.  As much as you’d like to prevent employees from criticizing their manager or the CEO online, you can’t.  This is true whether or not your employees are unionized. So check your Social Media Policy, and make sure it doesn’t include these types of statements, or you risk attracting the attention of the NLRB – or losing the case if you try to enforce it.