NLRB Charges Company With Illegally Firing An Employee Over Facebook Page
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Many legal bloggers have wondered about the direction of the post-Bush National Labor Relations Board (NLRB). Speculation began about the time the Senate filibustered President Obama’s nominations, when the President slipped in under the radar with recess appointments of Craig Becker and Mark Pearce.
I think the time for speculation is over in light of the recent decision of the NLRB to file a complaint against American Medical Response of Connecticut, for firing an employee who used Facebook to lambast her supervisor. The case stemmed from an employee who was asked to prepare a response to a customer complaint. The employee, a member of Teamsters, asked for assistance from her union representative. When her supervisor denied her request, she lambasted him on Facebook using vulgarities and referring to her supervisor as a “17,” the company’s abbreviation for a psychiatric patient.
The NLRB has claimed the company’s Facebook policy was “overly broad,” and infringed on the employees right to discuss working conditions with fellow employees. The policy had prohibited employees from making comments about the company on Facebook or other social media sites.
The New York Times reported, “…, the Board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.” The charges will be heard by the NLRB at the end of January, 2011.
Common sense and civility appear lost in all of this. Yes, the National Labor Relations Act creates protected speech insuring an employee’s right to discuss wages, working conditions, and unionization. It is not however a bullet-proof blanket protecting anything an employee wants to throw out on social media. The case sounds very fact specific, and may very well result in a mixed decision by the Board finding both protected activity and non-protected misconduct by an employee. MPR Marketplace reporter Janet Babin reported on the case this week, summarizing a variety of viewpoints including my own.
Speaking vulgarities about your supervisor or questioning his mental capacity through social media is not the same as a private conversation with other employees, and besides the rest of the world doesn’t want to hear it. I have previously blogged about the need for workplace social media policies, and the threat to businesses posed by employee use of social media.
This is definitely a case to watch to see how far the NLRB will try to stretch into micromanaging workplaces. In the mean time, it would be wise to revisit your social media policies to see if the NLRB may come knocking on your door.
