Employee use of social media causes labor professionals problems with increasing frequency. Facebook pages, Twitter feeds, and similar outlets seem to provide a never ending stream of possible employee relations scenarios. In an effort to deal with these issues, many businesses have adopted policies governing employee use of these internet resources. In addition to addressing the employee relations issues, employer’s see these policies as a way to protect their reputation and/or brand.
As employers grapple with these issues, however, courts and agencies do as well. The NLRB is no different. A good example was made public last night from the NLRB regional office in Hartford, Connecticut. The regional offices are responsible for prosecuting alleged violations of the NLRA. The Hartford office announced that it has issued an unfair labor practice (ULP) complaint (pdf) — an allegation that the employer violated the NLRA — against an employer who disciplined an employee for comments on her Facebook page.
The complaint alleges that a supervisor asked an employee to meet to discuss what the employee thought could lead to discipline against her. The employee requested union representation, which was denied. Later that same day, the employee posted critical comments about her supervisor on the employee’s Facebook page.
The complaint further alleges that the employer fired the employee for her comments on the Facebook page. The employer’s blogging and internet posting policy prohibited employees from making disparaging comments about the employer and supervisors. The employer’s policies also prohibited "rude or discourteous" treatment of a coworker.
It is important to note that the Hartford office’s complaint is merely that: an assertion that the employer’s conduct was unlawful. It doesn’t constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful. Nonetheless, the complaint serves as an important reminder of at least three points:
- Protected, concerted activity. The complaint asserts that the employee’s comment on the Facebook page was "concerted activity" under the NLRA. Employers are not permitted to discipline employees for engaging in protected, concerted activity. This case reminds all employers that this activity can be alleged to occur in a number of different contexts.
- What your policies say matter. The complaint attacks not only the employer’s discipline, but also the policy itself. Employer policies can be phrased in a fashion that is overly broad under the NLRA, thus violating federal law.
- New media; old law. Protection of concerted activity by employees is a bedrock principle of the NLRA. In the event there was any doubt, this complaint suggests that the regional offices will apply those laws to new forms of employee communication just as aggressively as they have in the days of the water cooler conversation.