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What Employers Should Know

Written By Sigrid U. Zaehringer
Published in the April 2011 Edition of the Quad City Times Business Journal

 
 
 
On February 7, 2011 the National Labor Relations Board ("NLRB”) announced in a press release that it had reached a settlement with an employer in a case involving the discharge of an employee for posting derogatory remarks about her supervisors on Facebook.

The case arose when an employee of a local American Medical Response of Connecticut (AMR) posted negative comments about her supervisors on Facebook prompting an online discussion with other AMR employees. AMR fired the employee for abuse of its Internet policies. The case was brought before the NLRB, which issued a complaint against the employer alleging that the employer violated the employee’s federal rights. The NLRB’s position was that employees are entitled to criticize their employers, their supervisors, or their work environment because the act of discussing the terms and conditions of employment with co-workers is protected activity under the National Labor Relations Act, Section 7. Consequently, the NLRB maintained that the employer’s rules concerning Internet usage, logins, and communications between employees infringed upon the employee’s employment rights. 

Under the settlement agreement approved by the NLRB’s Regional Director, the employer agreed to revise its employee handbook. Additionally, the employer has agreed it will not prohibit the employees from discussing their wages, hours, and working conditions with co-workers while they are not at work. Furthermore, AMR agreed that employees are not to be subject to discipline or discharge for engaging in discussions about wages, hours, and working conditions with coworkers.

The nature of the NLRB’s press release about the settlement raises a number of concerns for employers, many of which have adopted Internet policies. First, although the NLRB referred to the AMR’s Internet policy as "overly broad,” it did not make an express finding that the policy was overbroad. This leaves employers at a loss as to how to tailor their policies so as not to violate Section 7. For now, the best example of what not to do is likely to be found in the NLRB’s original complaint against AMR, which contains the following excerpt from AMR’s Internet policy:

"Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.”

This excerpt is likely what the NLRB found to be most problematic. However, according to AMR, this language was part of a more extensive prohibition against other disruptive online conduct, such as sharing proprietary information, engaging in sexual harassment, or disparaging religion or race. The NLRB’s recent press release did not specify whether the entire policy or simply the portion quoted above was to be revised pursuant to settlement.

Another open question is whether an employee is still protected if she speaks out against an employer alone. The press release states that AMR will revise its policies so that the policies do not "improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” This raises a question – if an employee posts an inappropriate comment about his supervisor on Facebook and fails to illicit a response from his coworkers, does he lose protection under Section 7? The press release is not clear on this point.

Although the dispute with AMR resulted in settlement, and the case is not of precedential value, the terms of the agreement reflect the NLRB’s views on employee Internet discussions. Employers are encouraged to review their policies to ensure they do not unduly restrict employee communications. As it stands, disparaging remarks posted online for the world to read may constitute protected employee speech. 

For more information on this topic please contact Califf & Harper, P.C. by calling 309-764-8300 or 1-888-764-4999. This article is intended to provide general information regarding the topic discussed herein but is not intended to constitute individual legal advice.