By: Thomas W. Mackenzie

On November 2, the National Labor Relations Board (NLRB) issued a press release announcing its intent to prosecute a charge that an employer’s social media policy violates the National Labor Relations Act (NLRA).  The NLRB issued a complaint through its Hartford office which alleges that an employer violated the NLRA by terminating an employee who posted negative comments about her supervisor on her personal Facebook page.

In addition to the charge of an unlawful discharge, the NLRB found that the Company’s blogging and internet policy contained, in and of itself, 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.  The NLRB has concluded that these restrictions constitute unlawful interference with the right of the employees of the company to engage in protected concerted activity.

It is important to stress that the case is in its infancy.  It is has not been tried and the facts are disputed by the company involved.  What is important, however, is the clear signal from the NLRB that it is prepared to pursue facial challenges to internet or social media policies even where there is no claim that the policy has been unlawfully enforced.

The NLRB’s decision to pursue this case is as important to companies that have no union as well as to unionized employers.  As the role of unions has diminished over the last 25 years, the “squeaky wheels” in non-union companies have found protection under the provisions of the NLRA.

Employees have always had the right, within some limits, to freely criticize the wages and working conditions provided by their employer.  When they do so in concert with other employees they are protected by federal law.  As that dialogue leaves the employee lunchroom or neighborhood tavern and enters the realm of tweets, blogs and Facebook pages, employers need to be wary.  This is not to say that lines cannot be crossed.  Employees may lose protection if their disparagement is defamatory, a violation of the company’s harassment policy, threatening or disloyal.  These findings will be more nuanced and subject to second guessing by a significantly less employer-friendly NLRB than existed under the Bush administration.

What is clear is that all employers – – union and non-union – – need to take a hard look at their social media and internet polices.  If you prohibit negative comments about the company, its products and employees, you may already be in violation of federal law.

If you have any questions or would like additional information concerning this topic, please contact Thomas W. Mackenzie.

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