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Federal Scrutiny of Social Media Policies

February 8, 2011

Facebook posting subject of NLRB settlement with employer

On Monday, February 7, 2011, the National Labor Relations Board (NLRB) reached a settlement with American Medical Response of Connecticut, Inc., the employer recently charged by the NLRB with terminating an employee in violation of federal labor law for posting disparaging comments about her supervisor on Facebook. The NLRB complaint alleged that the employer's policy regarding "Blogging and Internet Posting" was overly-broad and unlawfully interfered with employees' rights under Section 7 of the National Labor Relations Act (NLRA) to engage in "concerted, protected activity." As written, the challenged policy stated that "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors."

Under the terms of the settlement agreement, the employer agreed to revise this policy to allow employees to discuss wages, hours, and working conditions with co-workers outside of the workplace, and agreed to refrain from disciplining or firing employees for engaging in such discussions. The matter of the employee's discharge was resolved through a separate, private agreement between the employee and the employer.

Why is this important?

The NLRB's involvement in this case indicates an increased focus on the enforcement of employee rights under Section 7 of the NLRA and on employers' social media policies. Section 7 protects employees regardless of whether their workplace is unionized; therefore all employers must be cognizant of policies and practices that might be interpreted to limit employees' right to engage in concerted action.

Actions needed?

The NLRB's stated position on this issue is that employees are allowed to discuss the conditions of their employment with co-workers on Facebook, or other social media websites, to the same extent they are permitted to do so at the water cooler or a restaurant. To this end, policies or practices which could be interpreted as limiting such right should be modified to include a statement that the policy will not be construed or applied in any manner that interferes with employees' rights under the NLRA.