Think Twice Before Disciplining Employees For What They Say On The Internet... The NLRB Is Watching
The National Labor Relations Board (“NLRB”) recently issued two complaints against employers for terminating employees who criticized their working conditions on Facebook.
These complaints come on the heels of the settlement of the NLRB’s first “Facebook firing” complaint last October against Connecticut-based American Medical Response, Inc. (“AMR”). In that case, an AMR supervisor denied an employee’s request for union assistance in responding to an investigatory review. The employee, an emergency medical technician, subsequently posted critical comments about the supervisor on Facebook, to which other employees responded supportively. AMR fired the employee pursuant to its social media policy, which prohibited employees from making “disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors” and depicting the company “in any way” through pictures posted on the Internet. The NLRB alleged that the employee’s conduct was protected, concerted activity under Section 7 of the National Labor Relations Act (“Section 7”) and that AMR’s actions and social media policy were unlawful.
By way of background, Section 7 protects an employee’s “right to . . . engage in . . . concerted activities for the purpose of . . . mutual aid or protection,” which includes discussing the terms and conditions of employment with co-workers. The AMR case settled privately before a hearing could be conducted, so employers were left without a bright line as to what point employee speech becomes protected speech.
Two recent complaints confirm that the AMR case was not an isolated incident, and that the NLRB is taking very seriously employees’ protected speech rights in social media. In a recent case in Illinois, In re Karl Knauz BMW, Case No. 13-CA-046452, the NLRB filed a complaint against a Chicago-based car dealership after it fired a salesman for criticizing the company on Facebook. The employee was displeased with the quality of food served at a customer event, which he and other sales representatives felt would hurt commissions. After posting to Facebook pictures of the allegedly sub-par food and comments disparaging the event, the dealership fired the employee. Similarly, in a recent case in New York, In re Hispanics United of Buffalo, Inc. Case No. 03-CA-027872, the NLRB issued a complaint against a Buffalo-area non-profit after it fired five employees for “concertedly complaining” on Facebook about their working conditions. One employee alleged in the Facebook post that some of her co-workers did not do enough to assist clients, prompting other employees to join the online discussion to complain about staffing and work load issues.
In all three complaints, the NLRB has contended that the employees’ conduct is protected speech under Section 7 as a discussion of his or her terms and conditions of employment. Moreover, the NLRB complaints target both the actual termination of the employees engaged in such activity, and the employers’ “overly broad” social media policies. More complaints will no doubt be issued in the near future. In fact, the NLRB’s general counsel recently indicated that each of the NLRB’s 52 regional offices has a pending social media case. Although it still remains unclear exactly where the line is between protected and unprotected online speech, a few things are clear from the NLRB complaints alone. First, employers should be aware that Section 7 protections apply to both union and nonunion employees alike--although the EMT from Connecticut was a union member, the car salesman from Illinois was not. In addition, a total ban on employees’ making critical comments about their supervisors or co-workers through social media is impermissible. NLRB rulings outside the social media context have invalidated policies that could “reasonably be construed by employees to bar employees from discussing with their coworkers complaints about their managers that affect working conditions.” KLS Claremont Resort, 344 NLRB 832, 836 (2005). The Board’s general counsel has suggested that social media policies are no different, characterizing online employee discussions as the 21st century equivalent of conversations at the office water cooler.
Thus, employers should clearly indicate in their policies that any restrictions on social media usage should not be construed as limiting an employee’s right to discuss his or her terms and conditions of employment with co-workers regardless of whether the workplace is unionized. Employers should also take care when disciplining employees for online chatter that relates--even tenuously--to their terms and conditions of employment, including comments that criticize or even insult company superiors. Employers do not need to tolerate speech that defames or harasses co-workers or supervisors for purely personal reasons. Nor do they have to accept speech that disparages company products or reveals confidential information. However, where online dialogue addresses employees’ working conditions, and is or has the potential to be joined by other employees, the NLRB will likely view this as protected speech.
