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NLRB’s Facebook Firing Complaint NOT a Ruling, but Still a Good Reminder

A nationally featured story involving a “Facebook Firing” is making a lot of waves, but is all this attention warranted yet?  The story is that of Dawnmarie Souza who in Facebook posts referred to her supervisor at American Medical Response (AMR) as (among other things) a “scumbag.” While the juicy details make for interesting water cooler conversation, this case is, so far, legally insignificant. Contrary to many reports, there has been no “ruling” in this case by the National Labor Relations Board (NLRB), only a “Complaint” by a Regional Office.  However, although the law has not changed and no decision has yet been issued, this case does remind employers (both unionized and union free) to consider the implications of the National Labor Relations Act (NLRA) on their social media policies.

The Complaint

By issuing a Complaint, the NLRB’s Hartford, Connecticut Regional Director is merely alleging that, among other things, AMR’s social media policy violated the NLRA.  Specifically, AMR’s “Blogging and Internet Posting Policy” prohibits employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” The Complaint alleges that by maintaining such a policy AMR was “interfering with, restraining and coercing employees in the exercise of the rights guaranteed in” the NLRA.  Among other things, the NLRA gives employees the right to engage in protected, concerted activity, which includes the right to discuss their criticism of management.

The next step in this case is a hearing on January 25, 2011 before an Administrative Law Judge (ALJ).  After a decision is rendered, the parties can appeal to the NLRB in Washington, D.C.  This process can take several months or even years.  Only after an NLRB decision will there be binding authority.  However, further appeals to the U.S. Court of Appeals and the U.S. Supreme Court are possible.  Thus, there is currently no real “takeaway” from the still-pending AMR case regarding employers’ social media policies except that the future may bring changes.

The NLRB's Current Position

While the position embodied in the Complaint is clearly hostile to social media policies prohibiting company-disparaging communications, this position is only that of one Regional Director, not that of the entire NLRB.  The NLRB’s position, which is more favorable, was expressed in a 2009 “Advice Memorandum” issued by the Board’s Office of the General Counsel.

In that Advice Memorandum, the Board’s Assistant General Counsel was asked whether Sears’ social media policy violated the NLRA by restricting employees’ ability to engage in protected, concerted activity.  The policy in question stated:

          Prohibited Subjects

In order to maintain the Company’s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

  • Company confidential or proprietary information
  • Confidential or proprietary information of clients, partners, vendors, and suppliers
  • Embargoed information such as launch dates, release dates, and pending reorganizations
  • Company intellectual property such as drawings, designs, software, ideas and innovation
  • Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects
  • Explicit sexual references
  • Reference to illegal drugs
  • Obscenity or profanity
  • Disparagement of any race, religion, gender, sexual orientation, disability or national origin

(Emphasis added.) Although the emphasized language is very similar to the language in the recent AMR case, the policy was upheld.

In its analysis, the Advice Memorandum examined the relevant binding cases and concluded:

If [a policy] does not explicitly restrict protected activities, it will only violate [the NLRA] upon a showing that: (1) employees would reasonably construe the language to prohibit [protected, concerted] activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of [protected concerted] Activity.

The Advice Memorandum concluded Sears’ policy “cannot reasonably be interpreted to prohibit . . . protected activity” and that Sears did not issue it in response to union activity or use it to restrict an employee’s NLRA rights.

Employer's Rights Under Current Law

Based on the complex facts in the AMR case (not fully discussed here), the Advice Memorandum may in the end not be helpful to AMR as, for example, it may be argued that the company was acting in response to union activity.  For everyone else, however, the Advice Memorandum appears to generally allow the protection of a company’s on-line image with properly drafted social media policies.  Qualified labor and employment counsel can draft compliant policies and provide counseling and training regarding the NLRA to help protect your company’s reputation while minimizing the risk of a lawsuit or unfair labor practice charge.

Brody and Associates regularly advises management on complying with state and federal labor and employment laws including the NLRA.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.