On October 27, the Hartford Regional Office of the National Labor Relations Board (NLRB) issued an unfair labor practice complaint against American Medical Response of Connecticut, Inc. (AMR), alleging that AMR violated the National Labor Relations Act (NLRA or Act) by terminating an employee for criticizing, on her Facebook page, her AMR supervisor. In a press release, the NLRB Office of the General Counsel asserts that the employee's Facebook postings constituted protected concerted activity, and that AMR's blogging and Internet posting policy contains unlawful provisions, which provisions, in and of themselves, constitute interference with employees' exercise of their right to engage in protected concerted activity.
The employee's Facebook postings, which she composed at home, and which elicited supportive responses from her co-workers, included: "Love how the company allows a 17 to be a supervisor," referring to AMR's code for a psychiatric patient. The employee also referred to her boss as a "scumbag as usual."
The problematic portions of AMR's blogging and Internet posting policy were:
Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company, in any way, including but not limited to any Company uniform, corporate logo or an ambulance, unless the employee receives written approval ... in advance of the posting;
Employees are prohibited from making disparaging comments or discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers, and/or competitors.
A hearing on this case was scheduled for February 8, but the matter was settled the day before, with AMR agreeing to revise its policy. (The discharge resolved through a separate, private agreement between AMR and the former employee.) However, the mere issuance of the complaint raises significant issues.
Existing Law
The NLRA makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 are limited. Section 7 states:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Thus, while Section 7 rights are not limited to the right to join or assist labor organizations, or to bargain collectively, the other protected activities, whether in a union or nonunion setting, must be "concerted" and "with the purpose of collective bargaining or other mutual aid or protection." The NLRB has made clear that for an activity to be concerted, it must be undertaken by two or more employees, or by one employee on behalf of others. And it is well established that activity by a single employee for that individual's own personal benefit is not concerted activity protected by Section 7.
With respect to the Facebook postings, there is little doubt that the comments in the postings, if made directly to a fellow employee, would fall within the NLRB's interpretation of protected concerted activity in that they would be deemed to constitute communications about terms and conditions of employment for the purpose of mutual aid or protection. But here, the statements were merely posted on the employee's Facebook page. Do they still fall within the definition of concerted activity? Furthermore, even assuming for the sake of argument that the postings are concerted activity, do they lose the protection of the Act because of their potential reach, i.e., far beyond any fellow employees? Indeed, AMR asserts that it learned about the postings from a customer.
As for AMR's blogging and Internet posting policy, the NLRB uses a two-step inquiry to determine whether the mere existence of a rule (independent of its actual use) violates the Act because it "reasonably tends to chill employees in the exercise of their Section 7 rights." First, a rule is unlawful if it explicitly restricts Section 7 protected activities. Second, if the rule does not explicitly restrict such activities, its existence will only be unlawful upon a showing that employees would reasonably construe the language in the rule to prohibit Section 7 activity.
Review Your Social Media Policy
A December 4, 2009 Advice Memorandum from the NLRB's Office of the General Counsel concluded that a social media policy with similar prohibitions to that contained in the AMR Policy was not unlawful where the particular rules at issue were part of a list of plainly egregious conduct, such as employee conversations involving the employer's proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs, and where the preamble to the policy explained that it was designed to protect the employer and its employees rather than to "restrict the flow of useful and appropriate information." Accordingly, the advice memorandum concluded that the social media policy contain "sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions."
In our last Observer, we encouraged the implementation of social media policies. Especially in light of the complaint issued against AMR, prudent employers, whether unionized or not, will review their policies to ensure that they are consistent with the advice memorandum discussed above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
