On November 2, 2010, the NLRB issued a press release reporting that its Hartford, Connecticut, regional office had issued a Complaint alleging that American Medical Response of Connecticut, Inc., (“AMR”) had published an overly broad blogging and Internet posting policy that violated employee Section 7 rights, and then illegally fired an employee for negative posts about a supervisor.
As described in the Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. Such provisions, according to the NLRB’s Complaint, constitute a violation of 8(a)(1) of the National Labor Relations Act because they interfere with employees’ right to engage in protected concerted activity under Section 7 of the NLRA. (The NLRB and courts typically interpret Section 7 as protecting employees’ right to discuss the terms and conditions of their employment with other employees or even non-employees.) The NLRB also alleged that the employer illegally fired an employee pursuant to that policy for posting negative remarks about a supervisor on Facebook, which the NLRB said drew supportive remarks from her co-workers.
Back in December 2009, the NLRB’s Office of the General Counsel issued an Advice Memorandum that addressed the circumstances under which an employer’s social media policy might violate Section 8(a)(1) of the NLRA because it might chill employee participation in concerted activities. Though the Memorandum does not constitute binding precedent, the General Counsel’s office concluded that the policy at issue, published by Sears Holdings, did not violate Section 8(a)(1) because, read as a whole, the policy could not be reasonably viewed by an employee as chilling union activity. The disputed provision in the policy prohibited “Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” The prohibition against disparaging the company, while perhaps read by itself might tend to discourage employees from engaging in concerted activity, was included among several other provisions that clearly did not violate Section 8(a)(1). In addition, there was no evidence that the employer has used the policy to discipline any employee for engaging in protected activity, nor that the Policy was promulgated in response to any other concerted or union activity.
It is in this context that the NLRB likely will evaluate the AMR policy and termination. Keep in mind that the issuance of this Complaint is not a final decision of the NLRB. It is the first step in the processes that might lead to a hearing before an Administrative Law Judge (ALJ) and a decision. As a result, if this Complaint goes to an ALJ hearing, we can expect the ALJ to carefully evaluate the context in which the policy was enacted and enforced. Right now, we do not know any of the other provisions in the AMR policy, but the provisions cited by the regional office generally prohibiting disparaging comments and requiring approval for any posts of any kind regarding AMR have the potential by themselves to discourage concerted or union activity. In addition, the NLRB’s press release also suggests that the employee was terminated after she was denied union representation at a disciplinary meeting.
The NLRB’s press release and its recent embracing of social media for its own communications – I obtained the press release from an NLRB “tweet” – suggests that social media may be becoming a point of emphasis for the Board. Regardless of whether they are unionized or not, employers should be reviewing their social media policies to ensure that any restrictions on communications about the Company are tailored to things that the company can legitimately restrict, like violations of the company harassment policy, or disclosure of confidential or trade secret information. But those restrictions should not be so broad as to prohibit all employee discussion of the company on their social media pages because the NLRB will likely consider that overbroad and a violation of Section 7 rights.