Can Employers Go Too Far With Social Media Policies? The NLRB Thinks So.

December 1, 2010, 10:09 AM

Earlier this month, the National Labor Relations Board ("NLRB") issued a complaint against a Connecticut company alleging that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on Facebook. The complaint also alleges that the company maintained and enforced an overly broad internet policy.

The NLRB investigation found that employee's Facebook post was "protected concerted activity" under the National Labor Relations Act. Likewise, the NLRB found that the company's Facebook posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors. The Board has consistently held that employee handbooks cannot prohibit such conduct and applied this analysis to the company's Facebook policy. A hearing will be held before an administrative law judge on January 25, 2011.

So what were the Facebook postings in question? According to the NLRB's complaint, the employee was fired after using vulgarities to ridicule her supervisor in a Facebook post. She also wrote, using the company's terminology for a psychiatric patient: "Love how the company allows a 17 to become a supervisor." As it turns out, the employee had clashed with the supervisor after the supervisor refused to allow a union representative to assist her in preparing a response to a customer's complaint about her work.

To be sure, the NLRB's definition of "protected concerted activity" is broad. Accordingly, employers should carefully review their policies on social media to ensure that the restrictions set forth in such policies effectively address legitimate concerns without running afoul of applicable law. - David J. Sullivan