NLRB's Allegations about an Unlawful Employee Termination for a Facebook Comment Bring Long-Standing Rules to a New Venue
The National Labor Relations Board (NLRB) recently issued a complaint alleging an employer's policy and practice regarding restrictions on social networking violated the National Labor Relations Act. While the NLRB's action is unprecedented in that it is the first time it has issued a complaint over comments on a social networking site, there is nothing new about the stance the NLRB is taking regarding employee communication in the workplace.
The NLRB has complained that an employer wrongfully fired an employee after she posted negative remarks about her supervisor on her personal Facebook page while at home using her personal computer. The employee's postings resulted in further negative discussion with co-workers about the supervisor. The employer terminated the employee pursuant to its blogging and internet posting policy – labeled "overly broad" and "unlawful" by the NLRB – which prohibited employees from making disparaging remarks about the company or a supervisor and forbade depicting the company "in any way" on the internet without permission. The NLRB concluded that the employee's Facebook postings constituted protected, concerted activity and the employer's policy unlawfully interfered with that activity.
The NLRB's recent focus on a Facebook-firing does not change the rules that have applied to all employers, even those without unionized workforces. The same rules that applied at the water cooler apply to recent technological developments like blogs and social media, such as Facebook, MySpace, or Twitter. For example, employers cannot enforce policies that may reasonably be interpreted to chill employee speech about their pay or working conditions. Similarly, a broad policy on employee speech – whether on a blog or in the break room – that prohibits criticism of the company or its supervisors is likely to draw a challenge from the NLRB.
But not all employee speech or supervisor critique may be considered protected, concerted activity. The activity will not be "concerted" if other employees are not involved or the criticism is not arguably on behalf of other employees. And speech likely will not be "protected" if it constitutes a mere personal attack on other employees or if it evidences a malicious motive or contains knowingly false statements regarding the company or its products. Employers can also limit the use of company property for such communications under certain circumstances where the policy is applied in a nondiscriminatory manner.
While the NLRB's recent case does not change any of the laws about how employers may restrict and respond to employee speech, it does provide an excellent reminder for employers to review their policies and practices, especially those regarding social networking and internet usage.
Employers who decide to implement social networking policies should be mindful of laws specifically directed at electronic communications. For example, the Stored Communications Act, the Computer Fraud and Abuse Act, and the Electronic Communications Act may prohibit an employer from improperly accessing or intercepting employee's communications on the internet and may allow employees to file private lawsuits.
Additionally, some states, like California, Colorado, Connecticut, Montana, New York, and North Dakota, protect employees from adverse employment action based on their lawful off-duty activities. An employee who posts comments on Facebook or Twitter using a personal computer at home – like the employee at issue in the NLRB's latest complaint – may also be protected by such laws.
Given these issues, employers should be cautious of implementing any policy, especially a social networking policy, that is not specifically designed for them.
If you have questions about such policies, you may contact one of the attorneys in the Frost Brown Todd Labor and Employment Practice Group.