Comments by Employees on Facebook – More Protected Than You Might Think!

BY: Howard Kurman

In November, 2010, the National Labor Relations Board issued a complaint (similar to a civil lawsuit) against American Medical Response of Connecticut, alleging that the Company illegally fired an employee for posting derogatory comments about her supervisor on her personal Facebook page. In fact, the employee posted a comment about her supervisor in which she referred to her supervisor as a “17”, Company jargon for a “mental patient”. When other co-employees saw her posting, they commented derogatorily about the Company, which, in turn, further precipitated more unfavorable comments from the employee. The Company, not appreciating the employee’s nasty comments, subsequently fired the offending employee. After she was terminated, the employee filed an unfair labor practice charge with the NLRB, contending that her comments constituted “protected concerted activity” under the National Labor Relations Act (the “Act”).

The Employer contended that its blogging and internet policy clearly and broadly prohibited employees from making disparaging, discriminatory or defamatory comments when discussing management or the Company. The Board, in issuing the Complaint against the Company, alleged that not only had the Company violated the terminated employee’s rights to engage in “protected concerted activity” under the Act, but had also illegally maintained a policy that improperly constrained employees from discussing wages, hours and terms and conditions of employment, historically protected under the Act for non-union, as well as unionized employees.

Before the case went to scheduled trial on January 25, 2011, the Board and the Company settled the case. In a press release dated February 7, 2011, the NLRB announced a settlement of the case under which the Company agreed to revise its internal policies so that they do not improperly restrict employees from discussing their wages, hours and working conditions, even during non-work time, and that employees would not be disciplined for engaging in such protected activity.

While no definitive decision was reached in this case because of the settlement, it is clear that the activist NLRB (now dominated by Democrats) will be pursuing its own pro-employee/ union agenda for the foreseeable future, and that employers will not be receiving the same deference that they might have received during the Bush administration. From a practical perspective, it behooves all employers to work with their employment counsel to closely scrutinize their Employee Handbooks and Social Networking policies to make sure that limitations on employee activities and comments do not impermissibly cross a line that may well be found to be violative of the National Labor Relations Act. We encourage you to speak to us about your existing or contemplated policies on workplace discussions, social networking and electronic monitoring to assure compliance with what assuredly will be an evangelistic and anti-business NLRB under President Obama.

If you wish to discuss the contents of this article further, please contact Howard Kurman at 301.575.0317 or hkurman@offitkurman.com.