by James A. Woehlke, Esq., CPA, CAE
General Counsel / COO, MBL Benefits Consulting Corp.

The National Labor Relations Board has long held that employees have a right to criticize their management in conversations with one other. This is part of what the NLRB considers an employee’s right under the law to participate in concerted activity. (The right does not extend, however, to statements that are insulting, or obscene personal attacks on a supervisor, though what is insulting or obscene varies significantly based on the surrounding circumstances.) The right extends both to union and nonunion employees.

The interpretations of this right were developed when employee group communications occurred around the water cooler or during breaks or at lunch. But how do those interpretations apply in a socially networked world? That question is about to be answered. On October 27, 2010, the NLRB’s acting general counsel, Lafe Solomon, filed an action against an employer for having fired an employee after the employee complained about her supervisor on Facebook.

The employee of a Connecticut emergency response company was asked to prepare an investigative report about a customer complaint concerning the employee. She reacted via a Facebook post complaining about her supervisor, which resulted in an on-line conversation among the company’s employees. She was then terminated for violating two company policies: one that prohibited employees from making disparaging remarks when discussing the company or supervisors, and another policy that prohibited employees from depicting the company in any way over the internet without company permission.

The NLRB’s complaint asserts that the employee was wrongfully discharged and that the company’s policy unlawfully interfered with employees in the exercise of their right to engage in protected concerted activity. The NLRB’s hearing is set for January 25, 2011.

While the NLRB action and possible appeals of the resulting NLRB decision are pending, employers are advised to review their blogging policies with their legal and human resources advisors to assess the risk posed by using these policies to discipline employees.

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Additional Resources

NLRB News Alert: “Complaint alleges Connecticut company illegally fired employee over Facebook comments” (November 2, 2010), http://www.nlrb.gov/About_Us/news_room/template_html.aspx?file=http://www.nlrb.gov/shared_files/Press Releases/2010/R-2794.htm

Law Firm Proskauer Rose Analysis: “NLRB “De-Friends” Employers in Its First Complaint Based on Employee’s Social Network Comments” (November 10, 2010) http://www.proskauer.com/publications/client-alert/nlrb-de-friends-employers-in-its-first-complaint/

Law Firm Littler Analysis: G. Appleby and P. Gordon, “NLRB Posts Frightening Message in Facebook Case”, http://www.littler.com/PressPublications/Lists/ASAPs/DispASAPs.aspx?id=1553

Venable LLP Law firm: “Does your Company’s Internet Policy Comply with Labor Law?”, http://www.venable.com/files/Publication/8457cb29-35af-4854-808f-8c9cc7e3b564/Presentation/PublicationAttachment/c43f4e63-2e8d-4733-98cd-97be5557dccc/Internet_Policy_Labor-Employment_11-10.pdf.

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