HR News & Trends, Legal Issues

Is Your Facebook Status a Protected Activity Under Federal Labor Law?

Attorney Darrell Clay of the Cleveland law firm Walter & Haverfield.

By Darrell A. Clay

The increasing prevalence of social media, where people tend to be fairly loose lipped, has led many employers to adopt policies that limit or prohibit what employees may say about their employer online.

Whether such policies violate federal labor law’s protection of workers who seek “mutual aid and protection” from fellow employees, as protected by the National Labor Relations Act (NLRA), now is an open question.

In November, the Hartford regional office of the National Labor Relations Board (NLRB) charged a local company, American Medical Response of Connecticut, Inc., with improperly terminating an employee for making negative comments on her Facebook page about her supervisor. Although American Medical Response has denied the allegations, the matter is currently set for a hearing in January 2011.

What’s protected

Enacted in 1935, the NLRA establishes numerous rights of employees. The act also makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of” those rights. Listed among the rights protected by Section 7 of the act is “other concerted activities for the purpose of . . . other mutual aid or protection.”

Traditionally, the NLRB and courts have has exhibited a high tolerance level for employee communications constituting concerted protected activity. In fact, past decisions have sanctioned fairly strong epithets in employee descriptions of employers or supervisors. These include “hypocritical,” “despotic,”tyrannical,” and even “a**hole.” Indeed, for more than 40 years, the NLRB has suggested that even actions resulting from “animal exuberance” remain protected by the act.

Notably, the act’s protection of concerted activity applies regardless of whether the employer’s workplace is unionized. Moreover, since its 1978 decision in Eastex, Inc. v. NLRB, the Supreme Court has concluded that the “mutual aid and protection” clause applies to activities that occur “through channels outside the immediate employee-employer relationship.”

The dispute

The American Medical Response complaint, and the press release announcing its filing, alleged that the company’s employee handbook contained a “Blogging and Internet Posting Policy” prohibiting employees from making “disparaging, discriminatory, or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” The policy also prohibited employees from posting “pictures of themselves in any media . . . which depicts the Company in any way” unless a company vice president pre-approved the posting.

After an employee was asked by her supervisor to prepare a report involving a customer complaint about the employee’s work, the employee asked for union representation. The supervisor denied the request and directed the employee to complete the report.

Apparently displeased by her supervisor’s decisions, the employee went home and posted a “negative remark” on her Facebook page about her supervisor. Several fellow employees posted “supportive responses,” which led the employee to make “further negative comments about the supervisor.”

The employee was suspended and subsequently terminated, according to the complaint, on the basis of the Facebook postings. Following an investigation, charges ensued. Notably, the complaint also alleges that the employee was fired because she “assisted” the employees’ Union, “and to discourage employees from engaging in [concerted] activities.”

Significance of the charges

According to the NLRB’s General Counsel, the American Medical Response case is nothing special. Instead, it is a “fairly straightforward case under the [act] – whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions . . . and they have the right to do that.”

That view, however, may not tell the whole story. In addition to asserting that the employee’s termination was improper, the complaint also stakes out the position that merely by adopting a policy against Internet postings that criticize the company – regardless of the extent to which the policy is actually implemented – the company was violating Section 7 of the act. Furthermore, the complaint challenges the company’s blanket policy of prohibiting the posting of any pictures depicting the company, even if they do not reflect negatively on the company.

As a result, despite the General Counsel’s suggestion to the contrary, the American Medical Response case deserves careful attention. Should the unfair labor practice charges be sustained, employers may promptly need to rethink portions of their employee Internet policies that relate to commentary or criticism in a protected environment.

Even now, employers preventively may wish to consult with labor counsel as to whether their Internet policies should affirmatively state that they will neither be construed nor applied so as to impede employees’ rights under the Act.

Darrell A. Clay is a partner at the law firm Walter & Haverfield in Cleveland. In his employment law practice, he represents employers and employees in litigation over restrictive employment covenants and confidentiality agreements, including obtaining and opposing injunctive relief. He also handles complex business litigation in a variety of areas, including media and Internet-related issues. He can be reached at dclay@walterhav.com.