Alert: NLRB Complaint; Overly Broad Social Media and Internet Policies

On November 2, 2010, the National Labor Relations Board (NLRB) issued a press release advising that its Hartford CT Regional Director issued a complaint against American Medical Response (“American”) of Connecticut for firing a union-represented medical technician, Dawnmarie Souza, after she posted remarks criticizing her supervisor on her personal Facebook account. The complaint also alleges that American illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy.

The NLRB indicates that the issue started when Ms. Souza was asked by her supervisor to prepare a report concerning a customer complaint about her work. Ms. Souza asked to have representation from the Union with regard to the issue and her request was denied. Later that day Ms. Souza posted remarks to her personal Facebook page from home that allegedly included, “looks like I’m getting some time off. love how the company allows a 17 to become a supervisor.” 17 is American’s terminology for a psychiatric patient. Her negative postings received encouraging responses from some of Ms. Souza’s co-workers and led to her making additional negative remarks about the supervisor.

Souza was suspended and later terminated allegedly for her Facebook postings and because such postings violated American’s internet policies. American’s counsel has stated that America terminated Ms. Souza because of two separate complaints about her “rude and discourteous service” within a 10-day period; and that Souza would have been fired whether the Facebook comments were made or not.

The position of the Acting General Counsel is that American’s firing of Ms. Souza violated her rights under Section 7 of the National Labor Relations Act (NLRA) which prohibits employers from punishing workers (union and non-union) from discussing working conditions or unionization. The NLRB found that “the employee’s Facebook postings constituted protected concerted activity”, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.

Acting General Counsel Solomon in an interview likened the statements made as the same as employees talking around a “water cooler.”

While the case is not purely about the Facebook posting that issue has received national attention because, the complaint by the NLRB Acting General Counsel in condemning American’s employee internet policy as overly broad is seen by some as an about face for the NLRB. The policy in American appears on its face to have little difference from the policy reviewed in the 2009 opinion issued by the NLRB’s Division of Advice which was found not to violate Section 7 of the NLRA. The American policy, like the company policy in the 2009 case included language prohibiting an employee from “making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” Both policies also prohibited broader conduct such as “rude or discourteous behavior to a client or co-worker” and “[u]se of language or action that is inappropriate in the workplace whether racial, sexual, or of a general offensive nature.” The issuance of this complaint is thought by many to reflect a change in position of the NLRB and to reflect the mind-set of Chairman Wilma Leibman and the 3-1 pro-labor majority of the President Obama appointed members of the NLRB.

It is clear from the Acting General Counsel’s comments and those of the NLRB Chairman, that the NLRB has an increased interest in social media and other policies that restrict communications and do not clearly state that the prohibitions contained in them are not intended to cover complaints or statements regarding working conditions or unionization.

This complaint is scheduled to be heard on January 25, 2011 and the decision in that hearing may still be subject to review by a federal appellate court. However it not only bears watching but employers should consider making clear in their policies and handbooks that those polices are not intended to restrict or cover complaints or statements regarding terms and conditions of employment or communications about unionization.

Please note: This page is provided for general informational purposes only and is a marketing publication of Gentry Locke Rakes & Moore, LLP. It is intended to alert visitors to developments in the law and is does not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.

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