The National Labor Relations Board's General Counsel (General Counsel) recently issued an unfair labor practice complaint out of its Hartford office, alleging that American Medical Response of Connecticut, Inc. (AMR) published an overly broad blogging and Internet posting policy and unlawfully fired an employee for posting negative remarks about a supervisor on her Facebook page. The General Counsel also issued a press release regarding the complaint. Apparently, the General Counsel wants to put employers on notice that it intends to closely examine social media policies to determine whether they unlawfully discourage employees from discussing their work environment or from communicating their views on unionization with other employees.
The AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from "in any way" depicting the company over the Internet without permission. The General Counsel's complaint alleged that the policy inappropriately restricted employees from communicating complaints about their jobs in violation of their right under Section 7 of the National Labor Relations Act (Act) to engage in protected concerted activity. The complaint further alleged that, by firing the employee for posting negative remarks about a supervisor on Facebook (which drew supportive remarks from co-workers), AMR further interfered with the employee's Section 7 rights. An administrative Law Judge will hear the case in early 2011.
The General Counsel's complaint may signal an effort to depart from current National Labor Relations Board law regarding rights under employer policies. In 2009, the General Counsel's Division of Advice issued an advisory memorandum, in which it concluded that an employer's social media policy that was much like the one in this case was lawful under the Act. In that instance, the policy prohibited, inter alia, disparaging the company's, executives, employees, strategy and business products. The Division of Advice concluded that the policy was legal because it was part of a broader policy that lawfully prohibited other forms of unacceptable conduct and expressly said that it was designed to protect employer and employees interests, but not to restrict the flow of information. The Division of Advice also found that the policy was not promulgated in response to union organizing activity nor was it applied to discourage such activity. As a result, the Division of Advice determined that the policy would not reasonably tend to chill employees in exercising their Section 7 rights.
In several dissents, National Labor Relations Board Chairman Wilma Liebman has taken issue with how the Board's "reasonable tendency to chill" test has been applied to employer policies which she considers too vague in prohibiting certain employee communications. Her position is that policies which broadly prohibit negative or defamatory statements go too far and include conduct protected by Section 7 of the Act. The complaint in the case against AMR may reflect an effort by the General Counsel to move the law toward Chairman Liebman's position.
The General Counsel's complaint against AMR highlights the need for employers to be aware of the General Counsel's increased interest in social media and other policies that do not make sufficiently clear that they exclude communications about employment terms or conditions or about unionization. Policies that are vague or overbroad may be attacked by the General Counsel, regardless of the employer's intent or actual practice under the policy.
Policies worth reviewing include those addressing confidential information, electronic media, internet and e-mail use, solicitation, bulletin board postings, off-duty conduct and compensation discussions. No precise law has been developed, so the ultimate decision in the AMR case will be important. What seems critical at this juncture is that restrictions in policies should not be so broad as to prohibit all employee discussion of the company, and policies should indicate that they are not intended to restrict employees' rights to engage in protected concerted activity under federal labor law.