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Are an employee’s disparaging Facebook posts protected?

 

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A Complaint filed by the National Labor Relations Board in Connecticut has been receiving a lot of attention in the news this week, but it is important to view it in context.

Overview: The complaint alleges that an ambulance service, American Medical Response of Connecticut, Inc.,  (1) illegally denied union representation to an employee during an investigatory interview; (2) illegally terminated the same employee after she posted negative remarks about her supervisor on her personal Facebook page; and (3) maintained and enforced an overly broad blogging and internet posting policy.

Underlying Facts:  When asked by her supervisor to prepare a report responding to a customer complaint about her work, the employee requested but was denied representation from her union.  Later that day, the employee used her home computer to post a negative remark about the supervisor on her personal Facebook page.  The post drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings because such postings violated the company’s internet policies prohibiting disparaging comments.

NLRB Position: The NLRB alleges that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors, and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions, according to the board, constitute interference with employees in the exercise of their right to engage in protected concerted activity.

Analysis: The filing of this Complaint is important because reminds us that some “concerted activity” by employees may be protected and cannot be used as the basis for discipline or termination.  Both unionized and non-unionized employees are protected by the National Labor Relations Act from being punished  for discussing working conditions or unionization. The Board’s action here reflects a very broad view of workers’ rights; a hearing in January will determine whether the employee’s Facebook posting is really protected activity, or unprotected disparaging and offensive remarks about a supervisor. 

While a blanket policy prohibiting employees from making make disparaging comments about supervisors or discussing the company on the internet is most likely not enforceable, that does not mean that employees have free rein to do so.   To be protected, any criticisms must clearly be related to the employee’s work.  Making fun of a supervisor’s personal characteristics, for example, would not be acceptable.  Similarly, statements that might harm the company or are clearly untrue or defamatory are prohibited.  For example, an airline employee who alleges that the airline is unsafe, without any proof, is not engaging in protected speech. 

Recommendation: First, employers should, however, review their Internet and social media policies to ensure that they cannot be viewed as an improper effort to prohibit employees from exercising their rights to discuss wages, working conditions and unionization.  Second, employers should not discipline or terminate an employee for making disparaging remarks until it has considered whether those remarks might be protected.

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