How much latitude do employees have when making negative comments about their employer on Facebook, Twitter or anywhere else online? Yesterday's settlement of a case brought by the National Labor Relations Board (NLRB) sheds some light on the subject. The NLRB Wades Into Social Media This case was the first by the NLRB to claim that an employer violates the law when it disciplines an employee for posting critical comments on Facebook or other social media. The NLRB alleged that a Connecticut ambulance company "illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page" and that the company "maintained and enforced an overly broad blogging and internet posting policy." The Allegations The case began when the employee's boss questioned her about a customer complaint concerning her work. When the employee requested union representation during the questioning, the company refused. The employee responded by posting a highly negative remark about her boss on her Facebook page. The remark generated supportive comments from her co-workers to which the employee responded with additional negative comments about her boss. The company suspended the employee and then terminated her for violating the company's internet policy. In a statement that alarmed many employers (and their employment law attorneys), the NLRB contended that: The employee's Facebook postings constituted protected concerted activity, and that the company's blogging and internet posting policy contained unlawful provision, including one that prohibited employees from making disparaging remarks when discussuing the company or supervisors and another that prohbited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in their right to engage in protected concerted activity. The Company's Response The company denied the allegations, claiming that the employee was fired "based on multiple, serious complaints about her behavior," including negative Facebook comments about a co-worker. The Settlement The terms of yesterday's settlement were not completely disclosed. But an NLRB press release indicated that the company "agreed 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 they would not discipline or discharge employees for engaging in such discussions." Another Case on the Horizon? The NLRB has filed another claim targeting an employer that has a policy prohibiting "the use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy." Stay tuned to see how that case plays out. What This Means for Employers Can I ignore these cases because my company is non-union? No. The National Labor Relations Act (NLRA) protects the rights of both union and non-union employees to discuss wages, hours and other terms and conditions of employment with co-workers and others. Do these cases mean that employees can now post whatever they want about your company online? No. While employees have the right to discuss wages, hours and working conditions, neither this nor any other case gives them an absolute right to defame or disparage a company and/or its products, management or employees. Should companies periodically review their social media policies to ensure that they're not overly broad or out-of-date? Yes. Here's a model policy from the fine folks at McGuire Woods LLP for your consideration.
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