How to Stay on the NLRB's "Friends" List

by Chrys A. Martin and Krista N. Hardwick

You may recall that last November we told you about the Connecticut employer who faced NLRB charges for firing an employee who posted derogatory comments about the company on Facebook (http://www.bullivant.com/Facebook-Not-Grounds-For-Termination). Last week, the employer and the NLRB reached a private settlement, before the judge had an opportunity to rule on the matter.

Even though the judge did not issue a formal ruling in the Facebook case, employers (all employers, not just union shops) should take certain steps to avoid being the next victims of enforcement action by the NLRB in its ongoing efforts to protect employee rights to discuss wages, hours, and working conditions.

One of the NLRB's chief concerns in the Facebook case was the firing of an employee for making negative comments about her supervisor and the company online. Not all negative comments by an employee are necessarily protected. Certain types of comments are considered protected concerted activity, however, and employers should be cautious before firing or disciplining an employee based on such comments. Each case is different and employers are advised to consult with experienced employment counsel before taking action against an employee because the employee made negative comments about the company on the internet (or anywhere for that matter).

Another key take away from the Facebook case is that the NLRB does not look favorably on overly broad social media policies. While employers can (and should) restrict what employees say about the company on social media websites like Facebook, Twitter, and blogs, overly broad policies that chill the employees' abilities to exercise their right to discuss working conditions may violate the law. We recommend that all employers consult with their employment counsel regarding their social media policies to ensure that they are in compliance with the NLRB's enforcement position.

Related Practice Areas

• Employment Counseling & Litigation

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