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Facebook and the NLRB: NLRB to Weigh In Regarding Employee's Negative Comments About Her Supervisor

By Erin L. Kilgore

Employers are struggling with how to respond to employee use of social media, particularly whether and/or how to respond to – or prevent – employees from posting comments about their employers on their personal social networking platforms, such as Facebook, My Space, and Twitter.  Until recently, there has been little guidance for employers in navigating this new territory.  However, on Tuesday, November 2, 2010, the National Labor Relations Board issued a press release, through which the Board announced its position on the issue.

The press release stems from a complaint issued by the NLRB's Hartford regional office on October 27, 2010, which alleged that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The employee's supervisor had denied her union representation during an investigatory interview, and later that day, the employee posted the negative remarks from her home computer. The NLRB's investigation found that the employee's Facebook postings constituted protected concerted activity under the National Labor Relations Act. The NLRB's finding of concerted activity may have been bolstered by the fact that the employee's Facebook comment drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee. The Act guarantees that employees have the right to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C. § 157. Employers are prohibited from interfering with, restraining, or coercing employees in the exercise of this right. 29 U.S.C. § 158(a)(1). In this vein, the NLRB also found that the company's blogging and internet posting policy contained unlawful provisions, particularly a provision that prohibited employees from making disparaging remarks when discussing the company or supervisors, and a provision which prohibited employees from depicting the company in any way over the internet without company permission.

The right to engage in concerted activity applies with equal force to union and non-union employees. A hearing on the case is scheduled for January 25, 2011.
 

Full post as published by Louisiana Law Blog on November 08, 2010 (boomark / email).