The National Labor Relations Board’s (“NLRB”) recent complaint against a Connecticut ambulance company for allegedly firing an employee due to negative posts on Facebook has been all over the news. What does it mean for you?
The NLRB felt the posts qualified as “protected concerted activity” – the right of employees to discuss the terms and conditions of their employment – particularly because some coworkers replied to them.
While the case was settled, it is clear from the NLRB’s public statements that it will challenge policies that prohibit employees from making disparaging remarks when discussing the company or supervisors, as well as policies that prohibit employees from depicting the company in any way over the internet without company permission.
There is less guidance on other issues. Generally, the test is whether there is a direct nexus between the communication and employment related concerns. As long as disparaging remarks relate to a labor dispute or workplace interests and are not egregious or reckless in nature, they will be protected.
The NLRB requires a higher threshold for “egregious or reckless” than you might think. In this case, the employee called her boss disparaging names including a four-letter word and referred to her supervisor using the company’s code for a mental patient. Depending on the context, it seems the NLRB would protect outright disloyalty. It is likely the NLRB would not protect the disclosure of confidential information.
A word on the NLRB: it is a five-member board whose members are named by the President with the advice and consent of the Senate. This means that the NLRB often swings from pro-employer to pro-employee and back as administrations change. While courts are reluctant to change rules of law rendered in the past – even if the current court might ultimately render a different decision – the NLRB frequently reverses itself and changes even fundamental principles when the composition of the Board changes. Therefore, this issue could veer in a different direction given enough time.
For the time being, social media policies will have to be revised so they are not overly restrictive of employees’ rights to discuss their terms and conditions of employment with others. Consideration should also be given to whether the Fourth Amendment restricts employer monitoring of the use of social media by public employees. Feel free to contact any of the Firm’s IP or employment lawyers if you have any questions about your policy.
Al Mezny is a member of the Board of Directors of the Firm who provides efficient counsel concerning your employment and information issues based on his 25 years of legal experience and his practical experience running his own business.