November 19, 2010

NLRB Unfriends Employer for Terminating Employee Over Facebook Use

Holland & Knight Alert
Phillip M. Schreiber

More and more employers are adopting social media policies in order to control what employees say about the company and its products in the world of cyberspace. But an October 27, 2010 complaint issued by the National Labor Relations Board (Board) against American Medical Response of Connecticut should cause employers to reexamine their social media and Internet usage policies. Specifically, employers should closely examine whether their policies might be interpreted to prohibit protected concerted activity, which includes disparaging comments about supervisors. If so, strong consideration should be given to modifying those policies.

Complaint Background

In its complaint, the Board asserts that an employer’s decision to suspend and then terminate an employee for posting disparaging comments about her supervisor violated Section 7 of the National Labor Relations Act (NLRA). Section 7 protects employees rights to engage in concerted activity. According to the complaint, the employee’s supervisor requested her to prepare a report following a customer complaint. The employee requested representation by her union but her request was denied and she was threatened with discipline. Later that day, the employee posted a disparaging remark about her supervisor from her home computer to her personal Facebook page. Specifically, she referred to her supervisor as a “17,” which to company insiders means a mental patient. Some of her coworkers responded to the post with supportive messages. In response, the employee posted more disparaging comments about the supervisor.

The complaint goes on to allege that when the employer learned of the employee’s disparaging comments, it suspended and then terminated her for violating the employer’s Internet policies.

The complaint further alleges that the employer’s Internet policies violated the NLRA on their face. According to the complaint, the employer’s handbook contained several provisions that prohibited employees from making online posts that disparaged the employer or it supervisors and generally prohibited employees from making any references to the employer over the Internet without the employer’s permission. According to the Board, policies of this nature interfere with an employee’s rights to engage in concerted activity protected by Section 7 of the NLRA.

The complaint issued in this matter illustrates that the NLRB recognizes cyberspace as an area in which employees do, and are allowed to, engage in protected concerted activity. Employers need to consider whether their work rules and policies may be read to interfere with their employees’ rights under Section 7 of the NLRA. Under the current makeup of the Board and its presumed approach to analyzing employer work rules, this concern is heightened.

NLRB Background

Up to now, the Board has used a two-step inquiry for determining whether the maintenance of a work rule violates the NLRA. Initially, a rule is unlawful if it explicitly restricts an employee’s Section 7 rights (i.e., to engage in protected concerted activities). If the rule does not explicitly restrict Section 7 rights, it will violate the NLRA only upon a showing that (1) employees would reasonably construe the rule to prohibit protected concerted activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise protected concerted activity. To date, the Board has held that this inquiry begins with a reasonable reading of the rule. It has rejected challenges to rules, or portions of them, read in isolation, and instead held that a rule’s context determines the “reasonableness” of a particular interpretation. In other words, up to now, the Board would not find a violation simply because a rule could conceivably be read to restrict protected concerted activity.

Although employers used to be able to take comfort in the Board’s approach to work rules, the composition of the Board has changed under the Obama administration. It is now controlled by three Democratic members: Wilma Liebman, Craig Becker and Mark Pearce. Ms. Liebman is the Board’s current chair and her tenure on the Board pre-dates the Obama administration. Her dissenting opinions in several “work rule” cases, issued when the Board was controlled by Republican members, suggest that many seemingly reasonable work rules now will be found to be unlawful based on the view that they would tend to chill employees in the exercise of their right to engage in protected concerted activities.

A review of Chairperson Liebman’s dissents in the Board’s work rule cases reveals how the Board likely will now approach its assessment of employer work rules. First, rules that are found to be overly broad or ambiguous likely will be interpreted as reasonably capable of being read to unlawfully infringe on Section 7 rights and, therefore, are unlawful. Second, it is the employer’s responsibility to define the area of permissible conduct (not just the prohibited conduct) in a manner that is clear to the employees so that employees will understand what is and is not prohibited by the rule. This may be accomplished by adding a statement to its rule that the prohibition does not apply to conduct that is protected under the NLRA. The statement probably will need to be an explicit and detailed discussion of the employees’ rights to engage in protected concerted activity. Third, where the rule is overly broad and ambiguous, it may not be saved merely by reminding employees of the original purpose of the rule because the employee would have no assurance that the rule would not be enforced against protected activity.

In applying these new standards to Internet and social media policies, employers also should take note of Chairperson Liebman’s dissent in The Register Guard, 351 NLRB 1110 (2007), which addressed the legality of employer restrictions on employees’ right to use its computers and e-mail system for non-work-related purposes. Member Liebman’s dissent shows that she takes a very broad view of employees’ rights to engage in protected concerted activity when it comes to the use of new technologies, such as e-mail, that “ha[ve] revolutionized communication both within and outside the workplace.” Social media posts are another form electronic communications used by employees and likely would be viewed by the current board in the same manner Chairperson Liebman views email.

Significance for Employers

The real significance of the NLRB’s changed view of social media use as protected concerted activity and new approach to work rules means that negative employee remarks are given the same protection when disseminated to all of cyberspace as they do within the workplace. Employers are well-advised to review their work rules, especially those relating to social media and those disparaging or derogatory remarks about the company or its supervisors or managers.

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