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Settlement Reached in the NLRB Facebook Case

By Erin L. Kilgore

On February 7, 2011, the NLRB and a private employer reached a settlement regarding the employer's termination of an employee allegedly based, in part, on Facebook posts made by the employee. However, because the case had not made it through the courts, employers and employees will have to continue to wait for a definitive decision regarding the legality of disciplining an employee for his or her postings about a supervisor on a personal social media platform.

On October 27, 2010, the National Labor Relations Board's Hartford regional office issued a complaint against an ambulance service and alleged, inter alia, that the company illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. According to the complaint, the employee's Facebook postings constituted protected concerted activity under the National Labor Relations Act, which guarantees that employees have the right to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. The complaint 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. For a complete discussion of the NLRB Hartford regional office's complaint and the associated legal issues, click here. 

On February 7, 2011, the NLRB reached a settlement with the company. According to the NLRB's February 8, 2011 press release, under the terms of the settlement, the company agreed, among other conditions, 'to revise its overly-broad rules to ensure they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.' For the complete NLRB press release, click here.  

Because the matter did not proceed to a final decision, the settlement itself has no precedential value, and the issues raised by this case – particularly concerning an employee's right, on his or her own time and using his or her own personal computer, to disparage a supervisor through social media – remain unresolved. However, the settlement highlights the need for employers to reexamine and, if appropriate, revise employee handbooks, especially internet and/or social media policies, to ensure that such policies comply with the National Labor Relations Act and other laws.
 

Full post as published by Louisiana Law Blog on February 15, 2011 (boomark / email).