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February 2011

Social Networking Liability: Settlement with NLRB over Internet Policy

On February 7, 2011, American Medical Response of Connecticut Inc. ("AMR") settled a case brought against it by Region 34 of the National Labor Relations Board for discharging an ambulance service employee who posted negative comments about her supervisor on her Facebook page.   

In its complaint, the Region alleged (1) that 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; (2) that AMR unlawfully denied the employee union representation at the investigatory interview concerning a customer complaint held shortly before her termination; and (3) that AMR's enforcement of its Internet posting policy resulted in an illegal termination when it fired the employee after she posted a "negative remark" about her supervisor on her Facebook page and then replied to comments on her initial post left by co-workers. 

Under the terms of the settlement agreement, AMR agreed to revise its allegedly "overly broad blogging and Internet posting policy" to ensure the policy does not "improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions." AMR also agreed that "employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation." The agreement was silent with respect to reinstatement and backpay because the parties reached a separate, private, non-board settlement. The settlement of this case is concerning for employers, who should reconsider broad restrictions prohibiting employees from talking about their jobs on Facebook and other social media sites.

First, the settlement appears to expand the definition of "protected, concerted activity." Traditionally, the National Labor Relations Act has permitted employers to discharge or otherwise discipline employees for acts disloyal to their employer, such as employee statements to the public that are intended to disparage their employer in the eyes of the public. Although the negative comments in this case were directed at a specific supervisor, such statements arguably are disparaging to the employer itself and not just to the individual supervisor. Additionally, the employee's statement arguably is not "concerted." The original negative statement does not appear to have been directed to the employee's co-workers to address workplace issues, but rather to the public at large. Absent her co-workers unsolicited responses, there would appear to be no basis for deeming this "concerted activity."

Second, the settlement suggests that employers will be restricted in their ability to protect their businesses from disgruntled employees who use social media sites to damage their company's reputation, image, and competitive advantage. Prior case law on Internet use policies suggested that employers had 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. Now, the employees or their bargaining representative can argue that co-workers saw the Internet posting and merely commented on the intent of the post.

Because the parties settled, this case does not establish new NLRB law with respect to employer Internet and blogging policies. Nonetheless, the Acting General Counsel will likely use this case and the settlement terms as the benchmark for what it will require in future cases involving the Internet. Thus, policies inconsistent with the requirements of the settlement may result in unfair labor practice charges. 

Given the above case and settlement terms, employers would be well-advised to contact counsel to review their Internet posting policy to see if the policies need to be re-written or revised.

Employment Law

Mercedes Colwin
Ryan J. Sestack

Employment Law