NLRB Regional Office Issues Complaint Against Employer Who Fired Employee For Facebook Postings
In a September 28, 2010 article in the National Law Journal entitled “Labor disputes arising out of social media,” I suggested that Chairman Liebman’s NLRB was likely to revisit the standards for determining the proper scope of an employer’s social media policy. On October 27, 2010, Region 34 issued Complaint in a case which may well provide the Board with that opportunity.
In American Medical Response of Connecticut, Inc., Case No. 34-CA-12576, the Acting General Counsel alleges that the employer has violated the Act by, among other things, maintaining overly broad rules regarding blogging and internet posting and firing an employee for disparaging a supervisor on Facebook. According to the Complaint, the employer maintains a “Blogging and Internet Posting Policy” which includes the passage:
Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers or competitors.
The Complaint alleges that the employer denied an employee requested union representation in connection with an investigation. Later that day, the employee posted comments on her Facebook page critical of a specific supervisor involved in the investigation. She was subsequently terminated. The Complaint alleges that the maintenance of the work-rule alone violated Section 8(a)(1) of the Act, and the employee’s termination violated Sections 8(a)(1) and (3).
In a December 2009 Advice Memorandum, the Board’s Division of Advice recommended dismissal of a charge against Sears Holding, Inc., alleging that similar policy language violated the Act. Relying on the Board’s holding in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), the Division of Advice reasoned:
While the ban on “[d]isparagement of company’s…executive leadership, employees, [or] strategy….” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct. The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7.
The composition of the Board has changed considerably since the 2004 Lutheran Heritage Village decision – and indeed since the 2009 Sears Holding Advice Memorandum. Current Chairman Wilma Liebman strongly dissented from the Lutheran Heritage Village decision. Her dissent suggests she likely would have applied a broader standard in the Sears Holdings case had it reached the Board – and likely will if this case does.
One might view the Complaint in this case as a more straight-forward, generic 8(a)(1) charge alleging the maintenance of an allegedly overbroad work-rule. But when viewed in the context of the Board’s recent J.Picini Flooring decision, and Chairman Liebman’s prior pronouncements that “[n]ational labor policy must be responsive to the enormous technological changes that are taking place in our society,” it is perhaps more sensible to view this as another step in an developing trend.
