One of the core principles of our federal labor laws is that employees have the right to engage in concerted activity. Indeed, all employees enjoy the right to engage in concerted activities regardless of whether or not they enjoy the benefits of union representation. The National Labor Relations Board has long held that employee conduct disparaging management officials or an employer’s business may be protected concerted activity if the remarks or conduct relate to employee interests or working conditions and are not egregious in nature.
In today’s electronic environment, where employees have access to blogs and social networking media, employees have the opportunity to reach other employees and voice their concerns regarding their terms and conditions of employment. In fact, the availability and use of new-fangled electronic media is no different, in substance, from any other forum historically available to employees to express their dissatisfaction with unfair working conditions.
In other words, employee rights do not change merely because employees exercise those rights by way of the opportunities afforded by the Internet.
It is in recognition of these principles that the NLRB has recently issued its first complaint against an employer in Connecticut which discharged an employee because she posted comments critical of her supervisor on her Facebook page. In issuing this complaint against the employer, American Medical Response of Connecticut, the NLRB has noted in a press release that:
When asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation from her union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings and because such postings violated the company’s internet policies.
An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.
This case will not be heard until 2011. We have every intention of keeping abreast of developments in this matter as they arise.
And kudos to the newly-revitalized NLRB for taking the first steps to ensure that employee rights are to be protected, whether they be exercised in the parking lot or on Facebook.