Wyatt Employment Law Report

NLRB Issues Complaint Over Employee’s Posting on Facebook

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By Edwin S. Hopson and Kim Koratsky

On November 2, 2010, the National Labor Relations Board (NLRB) announced that its Hartford, CT Regional Director had issued a complaint against an ambulance service, American Medical Response of Connecticut, asserting that the company had unlawfully discharged one of its employees for posting a negative remark about a supervisor on her personal Facebook page.  The NLRB also alleged that the employer denied the employee union representation during its investigatory interview and that it was maintaining and enforcing an overly broad internet policy.

The New York Times is reporting that this is the first case where the NLRB has stepped in to contend that criticism of an employer on a social networking site is generally a protected activity and that employers could be violating the law by punishing employees for such statements.

In its announcement regarding the complaint, the NLRB said that the fired medical technician  was accused of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites.  The NLRB asserts that the posting on Facebook was protected concerted activity and that the company’s policy prohibiting employees from making disparaging remarks about supervisors or the company violated the National Labor Relations Act (NLRA).  It also claims that the company’s policy which prohibits employees from depicting the company in any way over the internet without the permission of the company is an unlawful restriction on employees’ rights to engage in protected concerted activities.

The NLRA, in addition to allowing workers to form unions, prohibits employers from punishing workers, whether union or non-union, for discussing working conditions or unionization.  The NLRB’s Acting General Counsel said, “This is a fairly straightforward case under the NLRA—whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case, about their supervisor, and they have a right to do that.”  The NLRB also faulted another company policy that prohibited employees from making “disparaging or discriminatory comments when discussing the company or the employee’s superiors and co-workers.” 

According to the company, the discharged employee, Dawnmarie Souza, “was held accountable for negative personal attacks against a co-worker posted publicly on Facebook.  In a statement, the company said it believes that “the offensive statements made against co-workers are not concerted activity protected under federal law.”  Souza was asked to prepare a response to a customer complaint and was unhappy that her supervisor would not let a representative of the Teamsters Union help prepare her response.  Souza mocked her supervisor on Facebook, using vulgar language, according to the company.  Also, Souza wrote, “love how the company allows a 17 to become a supervisor” (“17” is company lingo for a psychiatric patient). 

The NLRB said that Souza’s comments drew supportive responses from her co-workers and led to further negative comments about the supervisor.  According to Jonathan Kriesberg, the NLRB Regional Director who issued the complaint, “[y]ou are allowed to talk about your supervisor with your co-workers.  You’re allowed to communicate the concerns and criticisms you have.  The only difference in this case is she did it on Facebook and did it on her own time and her own computer.”

A hearing on the complaint before an NLRB Administrative Law Judge is set for January 11, 2011.

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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