When Can Employees be Disciplined for Social Media Postings?

February 17, 2011  |  From HRCalifornia Extra

The risks and benefits associated with social media in the workplace continue to evolve, leaving many unanswered questions for employers.

In October 2010, the NLRB brought a complaint against American Medical Responses, Inc. (AMR), a Connecticut based ambulance service company, after the company terminated an employee for posting negative comments about her supervisor on the employee's personal Facebook page. According to the complaint, the employee's Facebook postings came after the employer denied the employee's request for union representation at an investigatory interview. The posting prompted comments from other employees within the company. The employee was then terminated because her postings violated the company's internet and blogging policies.

In February 2011, the National Labor Relations Board (NLRB) announced it had reached a settlement.

This NLRB action should prompt employers to carefully review their social media policies and use caution when disciplining an employee for making statements about the workplace on social media websites.

The NLRB's complaint alleged that the employer's decision to fire the employee violated section 7 of the National Labor Relations Act (NLRA), which protects the ability of employees to speak freely about the workplace. The NLRB's complaint alleged the employee was terminated for discussing the workplace on Facebook, thus discouraging "employees from engaging in these or other concerted activities."

According to the complaint, AMR's employee handbook included a Blogging and Internet Posting Policy, which prohibited:

  • Employees from "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors," and
  • "Rude or discourteous behavior to a client or co-worker" and "use of language or action that is inappropriate in the workplace whether racial, sexual or of a general offensive nature."

The complaint alleged the employer terminated the employee for violating these policies and that the termination violated the NLRA. In issuing the complaint, the NLRB took the position that the employee engaged in a protected activity when she posted comments about her supervisor, and responded to further comments from her co-workers, activity that shouldn't have resulted in termination.

The NLRB's complaint marks a departure from a 2009 opinion letter issued by the NLRB General Counsel's Division of Advice, which concluded that the employer's social media policy, which was similar to AMR's policy, did not violate the NLRA.

In the 2009 opinion of Sears Holdings, Case 18-CA-19081, the NLRB was asked to determine whether a company's social media policy, which among other things prohibited "disparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects," violated the NLRA. Union employees were required to follow such policy and, according to the opinion letter, the policy "became a frequent topic of discussion" amongst the employees, many of whom believed the policy infringed on their freedom to speak freely about the workplace.

The employer asked the NLRB to determine whether the policy did indeed violate Section 7 of the NLRA, based upon concerns raised by the employees and their union. The opinion letter concluded that the policy alone, and viewed in isolation, did not violate the NLRA. The opinion pointed out the fact that at that time, no employee was disciplined for violating the policy and that the policy was not implemented in response to union activity.

Based on the facts presented, the NLRB concluded in the opinion letter that "no employee could reasonably construe the Employer's Social Media Policy to prohibit Section 7 activities."

The NLRB complaint against AMR was set for a January 25, 2011 hearing, at which time the issues contained in the complaint would be heard and a decision rendered. Instead, on February 7, 2011, the NLRB and AMR reached a settlement agreement. While the exact terms of the settlement agreement are being held in confidence, the NLRB did issue a press release outlining some of the key settlement provisions.

The NLRB stated in its press release that:

  • Employees may freely discuss the terms and conditions of their employment with co-workers and others.
  • AMR maintained overly broad rules in its employee handbook regarding blogging, Internet posting and communications between employees.
  • The company illegally denied union representation to the employee during an investigatory interview, shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement, as presented by the NLRB, the company agreed to revise its employee handbook rules to ensure that policies do not improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work. The company also said it would not discipline or discharge employees for engaging in such discussions.

The company also said that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation, according to the NLRB.

Best Practices

The recent action by the NLRB should place employers on notice that the NLRB is taking a close look at policies, including those related to social media, and bringing action against companies that discipline employees for protected activities.

  • Review your social media policies as well as any other policies that are intended to manage workplace conduct.
  • Remove policies that preclude employees from speaking freely about the workplace, including pay and other benefits.
  • Contact your legal counsel before taking an adverse action against an employee for making comments concerning the workplace.
  • Learn how to create an employee handbook that protects employer rights.
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