The NLRB has now settled the “Facebook” complaint that has gained great attention. See Cleveland.com Article. In NLRB v. American Medical Response of Connecticut, Inc., the Board took the position that the employer violated the National Labor Relations Act when it terminated an employee for making nasty statements about her supervisor on Facebook. The NLRB’s rationale was that the negative post, and responses from co-workers, constituted concerted, protected activity under the Act. In other words, the Board feels that the conduct should be just as protected as Norma Rae’s holding up a cardboard “union” sign at the mill. Additionally, the NLRB stated that the employer’s prohibitive electronic communication policies also violated the law.
The settlement required the employer to revise its policies. The NLRB press release press release makes no mention of whether the affected employee received compensation under the agreement. According to the article linked above, she is not being reinstated.
Should employers revise their electronic communication policies based on the settlement?
A few considerations. First, the settlement does not establish precedent, but it certainly and clearly signals to employers the position that the NLRB will take on this issue, at least under the current administration. Second, there are weaknesses to the NLRB’s position that are yet to be addressed in litigation.
Nonetheless, the most cautious of employers will want to review the language in their electronic communication policies, and consider the following tweaks:
- Revise general statements that absolutely prohibit making any type of statements about the Company over the internet via blogging, social networking sites or otherwise;
- Qualify any such prohibitions with language like the following, “except as otherwise protected by law.”
- Remove statements that prohibit employees from communicating about the employer without permission, but make sure your policies adequately protect confidential business information and trade secrets.