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Editor: Heath H. Galloway
Facebook is everywhere, and its implications for
employers can be maddening. It is one thing to prevent your employees from
using Facebook while they are at work, but what control do you have over what
your employees say on Facebook when they are not at work? Can you discipline an
employee for calling his or her supervisor a psycho on the World Wide Web?
Perhaps not, according to the General Counsel of the National Labor Relations
On Oct. 27, 2010, the NLRB's Hartford regional office issued a complaint
against a Connecticut ambulance service asserting that the termination of an
employee who bad-mouthed her supervisor on Facebook, and the policies on which
the termination was based, were illegal under federal law. The employee's
comments, which included a reference to her supervisor as a psychiatric
patient, drew support from co-workers that were her Facebook "friends."
According to the complaint, when the company learned of the employee's online
rants, it suspended and ultimately terminated the employee on the grounds that
her Facebook postings violated the company's Internet policies. In the General
Counsel's view, "the employee's Facebook postings constituted concerted
protected activity, and 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 a way over the
Internet without company permission." See News Release, National Labor
Relations Board, Office of the General Counsel, Nov. 2, 2010. In the Board's
view, such policies "constitute interference with employees in the exercise of
their right to engage in protected concerted activity." Id.
On Monday, February 7, the parties settled the charge so the General Counsel's
complaint was not adjudicated. However, the issuance of the charge itself was
significant and represented an apparent departure from the Board's previous
stance on such issues. It remains to be seen where the Board will draw the line
between protected and unprotected conduct in the context of social media.
Regardless, however, employers should think twice before restricting workers
from talking about their jobs on social media outlets or disciplining employees
for their on-line activities. Employers should also consider whether or not
they need to implement social-networking policies, or, if such policies are
already in place, to reevaluate them to determine whether they create any
Although non-union employers generally do not think much about the National
Labor Relations Act, the law applies whether you have a union or not.
Specifically, the Act prohibits employers from curtailing employees - union and
non-union - from engaging in concerted protected activities, which include
discussions of the terms and conditions of their employment. Thus, even
employers with a non-union workforce could still run afoul of federal law when
disciplining employees for what they say about their jobs on-line.
For more information about this topic, please contact Heath H. Galloway
at 804.420.6466 or firstname.lastname@example.org
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