Let’s face it – just about everyone complains about work once in a while. In the past, perhaps we unburdened with our spouse, blew off steam with our buddies or merely grumbled to ourselves. Now, in the Facebook era, we have a vehicle to broadcast our gripes and send them echoing through the Internet. What are the rules about using this forum for unloading on the employer?
Many employers recognize this phenomenon and have sought to impose limits in this new medium by instituting Social Networking Policies that curb employees’ employer-related communications. For example, many employers have enacted policies like the following:
“Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”
Well “not-so-fast” says the National Labor Relations Board (“NLRB”), the federal agency that protects employees’ rights in regard to not only union activities, but also “concerted activities for the purpose of . . . mutual aid or protection.” In November 2010, the NLRB made a merit finding regarding an unfair-labor-practice charge and issued a complaint against American Medical Response of Connecticut after an employee was allegedly fired for writing a nasty comment about her boss on her Facebook wall – a comment that drew responses from her colleagues. American Med. Response of Conn., Case No. 34-CA-12576.
In its Unfair Labor Practice Complaint, the NLRB alleged that the employee’s Facebook comments constituted concerted and protected activity, and that her termination interfered with her exercise of those rights in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”).
The complaint also alleged 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, even when they were off the clock. This provision, the NLRB maintained, had an unlawful “chilling effect” on concerted and protected activities.
On February 7, 2011, the NLRB announced they had reached a Settlement Agreement with the company that calls for a revision of the company’s policies to ensure that they do not improperly restrict the rights of employees to discuss wages, hours, and other working conditions. The company also agreed that it will not discipline or fire employees for engaging in such activity in the future.
Bottom Line
Remember that the NLRA doesn’t just apply to workplaces with a labor union. Non-union employees have just as much right to engage in concerted and protected activities as union employees. Review and perhaps revise any and all relevant policies, and understand that – depending on the circumstances – it may be unlawful to discipline an employee for “complaining” about work, regardless of the mode of communication (e.g., personal conversations, in writing, or internet post).
Also, be prepared keep an eye on this area of law; it is still developing and it seems likely that it will continue to change.