The NLRB Loses a "Friend"

Complaining About Boss on Facebook Could Amount to Protected Employee Activity

On Nov. 2, 2010, the National Labor Relations Board (NLRB) issued a press release announcing that one of its regional offices had filed a complaint challenging the termination of an employee for posting negative remarks about her supervisor on her personal Facebook page. The news release also states that the company’s blogging and Internet posting policy contains overly broad and unlawful provisions relating to "disparagement" of the company and prohibitions against "depicting the company in any way" over the Internet without permission.

The facts alleged in the NLRB’s complaint and the press release (which vary slightly) tell the following, probably common story. An employee was upset with her supervisor. When she got home from work, she logged onto her Facebook page and posted "a negative remark" about him. That posting apparently drew "supportive responses" from co-workers and the encouragement led to further "negative comments" from the employee. When the postings came to the employer's attention, the employee was suspended and later fired.

In support, the employer relied on its Blogging and Internet Posting Policy and its Standards of Conduct, both of which prohibited such conduct. The policies at issue: a policy stating, "Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-works and/or competitors," and another prohibiting "rude or discourteous behavior to a client or coworker." The press release also cites a provision relating to "depicting the company in any way over the Internet" as a potential violation. Although that characterization does not quite capture the provision, which pertains to a prohibition against employees posting pictures of themselves that depict the company, such as in a uniform, without permission.

A charge was filed with the NLRB over the termination, the NLRB investigated and the complaint followed. Administratively, by issuing the complaint the NLRB is stating that it believes there has been a violation of the law, similar to a "cause" finding in other contexts. The relevant violation for this purpose is interference, restraint and coercion regarding "protected, concerted activity." The NLRB argues the termination discouraged employees from engaging in these protected activities together, which the board generally describes as including things like: (1) two or more employees addressing their employer about improving their working conditions and pay; (2) one employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions; or (3) two or more employees discussing pay or other work-related issues with each other. The NLRB further claims that the company’s policies themselves (cited above) violate Section 8(a)(1) of the NLRA as they interfere with “employees in the exercise of their right to engage in protected concerted activity.”

It is important to note that the issuance of a complaint is not a final decision by the NLRB. This matter is now scheduled for a hearing, on Jan. 25, 2011, before an administrative law judge. Consequently, the complaint filed by the NLRB is not binding law. Nevertheless, the fact that the NLRB issued a press release regarding its complaint is likely a signal of the enforcement decisions that will be made by the board on this issue in the future.

In fact, this case could have far-reaching results if it is determined that employees complaining about their boss on Facebook to and with other co-workers amounts to protected concerted employee activity. In light of the NLRB’s complaint and subsequent press release, employers should review their social networking policies to ensure that they are not overly broad and do not have the potential to affect employees' rights under the Act. This is true even if an employer is not unionized, as the NLRA applies to employees’ concerted activities regardless of whether they are represented by a union.

If you have questions about this article or the issues addressed herein, you may contact Ryan Poor or Eileen Moore.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.