United States: Protected Employee Speech and Social Media: Old Wine in a New Bottle

By Timothy Ryan¹

A recent complaint issued by the National Labor Relations Board ("NLRB" or "Board") is a reminder to employers that federal labor law policy, created in the first half of the 20th century, still has relevance in the first half of the 21st century.

The NLRB is the agency which administers federal law dealing with the rights of employees, employers, and unions. In a complaint filed in Connecticut, the Board charged that an employer illegally terminated an employee for making derogatory remarks about her supervisor on her Facebook page. The Board also alleged that the company's Social Media Policy is "overly broad" and violates federal labor law.

The National Labor Relations Act protects the rights of workers—whether their employer is union or non-union. Those rights include the right to communicate with each other about wages, hours, and other terms and conditions of employment. When two or more employees communicate with each other about their hours, their pay, or, as in this case, about their boss, they are likely engaged in protected concerted activity. The scope of this protection is quite broad. The courts and the Board have found an unlawful interference with concerted protected activity when an employee was fired for discussing wages and rates of pay with another employee,² when an employee was terminated because he objected to a pay cut,³ and when an employer maintained a rule that could "reasonably tend to chill employees in the exercise of their... rights."⁴ Generally, criticism of a supervisor that is false and defamatory or unrelated to work is not protected.

The employer's Social Media Policy is alleged to be unlawful because it contains provisions which prohibit employees from depicting the company in any way, without first getting approval from the company. The policy also prohibits employees from making "disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors." The Board's complaint alleges that when the employee posted negative remarks about her supervisor on her Facebook page which could be read by other employees, she was engaged in protected concerted activity. The complaint also alleges that the company's Social Media Policy is "overly broad" because its prohibition against employees posting disparaging remarks about the company and its supervisors interferes with the employees' exercise of their rights to engage in protected concerted activity.

The NLRB's legal theory in this case is not new. The right of employees to engage in this type of concerted activity is long settled. What's new is that, rather than bashing a boss over lunch in the cafeteria, the employee here used a Facebook page to do it. The employer involved in this case vehemently denies the allegations of the complaint and the accuracy of the facts described in it.

The significance of the complaint in this case is evident from the fact that the NLRB issued a news release about the complaint, something it rarely does. Employers should pay attention to this case because of the message it sends—employers should carefully examine their social media policies and determine whether they might be construed to interfere with employees' protected rights.5 This warning applies as equally to non-union companies as it does to union companies.

Footnotes

1 Mr. Ryan is a partner in the firm's Los Angeles office, where he specializes in labor and employment law. Mr. Ryan has extensive experience in the representation of employers in matters involving union organizing, collective bargaining, labor arbitration, and labor relations. The firm's management-representation experience covers a wide variety of industries, including manufacturing, retail, hotel, and entertainment.

2 NLRB v. Main Street Terrace Care Center, 218 F.3d 531 (6th Cir. 2000)

3 Wilson Trophy Co. v. NLRB, 989 F.2d 1502 (8th Cir. 1993)

4 Lafayette Park Hotel, 326 NLRB 824, 825 (1998)

5 For additional information about developing a legally-compliant social media policy, please refer to "Employees and Social Media: What is Your Company's Policy?" from our August 2010 Employment Law Commentary. Additional discussion is available in "Social Media in the Workplace" from our January 2010 Employment Law Commentary.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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