UPDATED 2/7/11 – The case settled today. See this update.
In an unprecedented case, the NLRB is pushing all in over the battle on social media. And its press release today leaves little doubt where it is placing its chips — strongly in the employee’s favor.
I had heard about this case a few weeks ago through the grapevine here in the area, but today’s press release makes it official. It is an important case to follow.
According the release, the NLRB’s Hartford regional office issued a complaint on October 27 alleging that "an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint also alleges that the
company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy."
It is further alleged that:
"when asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation fromher union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later
terminated for her Facebook postings and because such postings violated the company’s internet policies."
So what’s the really big deal about this? Well, it’s the next part of the NLRB’s press release that should have employers and their counsel on edge: The investigation found that:
"the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity."
Employers are increasingly looking at and monitoring social media usage. The NLRB’s complaint makes it clear that it intends to challenge employers who over-reach. A hearing on the case is scheduled for January 25, 2011.
Those that have been following the NLRB and the Hartford office should not be surprised by this development. Indeed, it was among the things that I indicated employers should be alert to after a breakfast discussion with the new Hartford office head in January 2010, Indeed, there was an advice memorandum issued in late 2009 about this issue as well.
But if employers needed any more reason to check their social media policy — this new case should be it.
A few blogs have already started to post about it today including the BLT Blog (which sought comment from the employer), Employer Law Report, and the Ohio Employer’s Law Blog.