On October 27, 2010, the National Labor Relations Board ("NLRB") filed a precedent-setting complaint against an employer for allegedly terminating an employee for criticizing her boss on Facebook. In its complaint, the NLRB alleges that American Medical Response of Connecticut Inc. ("AMR") "maintained an overly broad blogging and internet posting policy" that contained unlawful provisions such as prohibiting employees from posting disparaging remarks about the company on social networking sites. The NLRB also alleges that AMR's enforcement of its internet posting policy resulted in an illegal termination when the company fired an employee after she posted a "negative remark" about her boss online.
According to the NLRB, the alleged termination for bad-mouthing the company coupled with AMR's allegedly broad internet posting policy constitute "illegal interference with employees in the exercise of their right to engage in protected concerted activity." However, the statements released by the NLRB regarding this case do not suggest that the Facebook post pertained to any collective action concerning terms and conditions of employment at AMR. Indeed, the alleged "negative remark" appears to be directed toward a particular supervisor as opposed to protesting issues related to wages, hours and working conditions, which are typically the cornerstones of protection under the National Labor Relations Act.
Prior case law on internet use policies suggests that employers have a right to implement and enforce blogging and online posting guidelines to the extent that such policies do not infringe upon an employee's constitutional protections of free speech or other protected activity rights. An employer should be able to protect itself against employees who use social media sites to damage a company's reputation, image, and competitive advantage. The NLRB's recent filing against AMR, however, signals that the federal agency is scrutinizing more closely and hamstringing employers' legitimate efforts to protect themselves against "cybersmearing."
Public disparagement of one's employer on sites such as Facebook continues to be a growing source of legal and personnel problems for employers. However, with the NLRB's history-making foray into this area of litigation, a new and potentially law-changing impact for employers is likely to occur. The significant issue presented by the NLRB's complaint against AMR is whether bad-mouthing an employer on social media sites that reach critical masses will be considered protected activity. Arguably, such employee conduct may be considered "acts of disloyalty," which can lose protection under the National Labor Relations Act and, therefore, provide a legitimate basis for discharge. Until these issues are addressed more definitively by the courts, employers should take preventative measures and invest in effectively managing and protecting company resources against potentially derisive and damaging postings in the first place. A hearing is set for January 25, 2011 before an administrative law judge in Hartford, Connecticut to address the allegations set forth in the NLRB's complaint against AMR.