Social Media Put Downs & The Law
So you never gave much thought to the employment law implications of co-workers griping about their boss on Facebook? If not, you're probably in the same boat with a lot of executives, but a recent Connecticut case will force employers to pay more attention to their social media policies. While the case has yet to be fully adjudicated, the National Labor Relations Board has ruled that such carping is protected activity and employees who engage in it cannot face disciplinary action. IB sought the expertise of local attorneys to help sort out its ramifications.
In Your Facebook
In the much publicized case, an employee of American Medical Response of Connecticut posted remarks about her supervisor following a work-related incident, and she was fired. She filed a claim alleging that the ambulance service illegally fired her and denied her union representation during an investigatory interview, which, if true, would violate her Weingarten rights. However, it's the implications for the employer's blogging and Internet posting policy that has garnered the most attention.
The employee posted a negative remark about her supervisor on her Facebook page, a remark that drew supportive responses from co-workers. American Medical Response contends the postings violate its Internet policies, but an NLRB investigation ruled the postings constituted "protected concerted activity," and determined the company's Internet posting policy was overly broad and could not prohibit employees from making disparaging remarks when discussing the company or supervisors.
Greater Madison employers should review their Internet policies, but attorney Robert Driscoll, an associate with Reinhart Boerner Van Deuren, said the case has to play out because the NLRB is making a broader than normal claim. "What employers can do, before they act on any sort of intelligence they have about a Facebook or a blog posting, is don't react to what is said. Step back, evaluate it, look at what is really being said and the surrounding circumstances, and they will be in a better position to determine whether it's concerted activity or whether it's similar to what the NLRB is complaining about in the Connecticut case."
He explained that "concerted activity" refers to activity for the mutual aid and protection of employees. The typical situation would involve discussions about wages or working conditions. To Driscoll, the Connecticut situation doesn't sound, at least from the descriptions he's read in the complaint, as if the employee was referring to wages or working conditions; she was simply insulting her supervisor.
"That's one of the ramifications of the NLRB's decision," Driscoll noted. "As I understand it, the agency is trying to expand the definition of 'concerted activity' and apply it to situations where it hasn't been applied before."
Needless to say, a great deal rests on the outcome of this case because many employers already have established Internet and social media policies. These policies probably are pretty standard for almost all employers, but the NLRB now claims they violate the National Labor Relations Act because they could chill an employees' ability to engage in concerted activity.
Nilesh Patel, an attorney with the Mahadev Law Group in Madison, suggested that policies strike a balance between the company's right not be publicly embarrassed — "That hurts everybody, management and labor," he noted — and the employees' rights to speak up on behalf of one another and offer mutual aid and protection. Therefore, he discourages an outright ban on disparaging or derogatory remarks posted online.
Instead, he suggested a written policy in which the company emphasizes that it does not wish to restrict employee use of social media sites, but asks employees to use good judgment and common sense when posting information on such websites. He added that management should make it clear that it might take disciplinary action if the postings related to the company are discriminatory, abusive, insulting, false, or intentionally violate other company policies.
According to Driscoll, more employers now realize that sexual harassment or racial harassment concerns in the workplace also apply to Internet postings. "You have a duty, if you find out that one of your employees is creating a hostile work environment through a blog post about co-workers, to do something about that under federal and state discrimination laws," he explained.
While the Connecticut case has yet to be fully adjudicated before the NLRB, there is an appeals process beyond the NLRB proceedings. Patel said the Courts are fairly deferential to the NLRB, but there are exceptions. "The courts will override agency opinions when there is something wrong factually," he noted. "Otherwise, I don't think the courts will be substituting their judgment for what the NLRB wants to do."
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