An increasing number of employers have adopted social networking policies. Among other things, these policies routinely prohibit employees from making disparaging comments about their employer or co-workers on their personal web pages. On Monday, the National Labor Relations Board challenged the legality of such policies, accusing a Connecticut ambulance company of violating the National Labor Relations Act by terminating an employee for disparaging Facebook postings.
The NLRB filed a complaint against the employer based on its termination of an EMT who criticized her supervisor on her Facebook page. The employer's policy prohibits employees from making any depiction of the company on social networking sites. The NLRB contends that this policy violates a provision of the NLRA that prohibits employers from retaliating against employees who jointly discuss working conditions. This "concerted activity" is generally protected behavior under federal labor laws, whether or not the employer is unionized.
The ambulance company contends that the terminated employee's postings were not protected concerted activity, because they included ridicule of the supervisor, and references to his mental state. The administrative law judge assigned to the case will have to determine whether the disparaging comments were limited to work issues, and whether Facebook postings are considered to be communications among co-workers.
Until this case is resolved, employers may want to review their social networking policies to make certain that they do not prohibit or deter employees' legal rights to discuss working conditions. The NLRB is taking an increasingly aggressive position with regard to similar policies, including employer prohibitions on employees disclosing or discussing compensation among themselves.