Last month, we informed you about the complaint issued by the National Labor Relations Board (“NLRB”) against an employer that allegedly terminated an employee for making derogatory remarks about her supervisor on the employee’s Facebook page.
The complaint alleged, inter alia, that this termination was in violation of federal labor law, that the company’s social media policy was “overly broad” because it prohibited employees from posting disparaging remarks about the company, and that enforcement of this policy interfered with employees’ rights to engage in concerted activity.
This case received significant media attention because it applied a well established legal theory to a new context. Although it is long settled that employees have the right to engage in discussions about their wages, hours, and working conditions, this case signals to both union and non-union employers that this right extends past the physical workplace and onto its employees’ Facebook pages. Further, this case warns employers of the NLRB’s intent to protect employees’ use of the Internet as a forum to engage in concerted activity, even where the protected content is less than respectful.
On February 7, 2011, the NLRB announced that it entered into a settlement agreement with the employer. Although the agreement was not released, public reports indicate that, as part of the settlement, the employer agreed to change its “overly broad” social media policy to ensure that it does not interfere with employees’ right to engage in concerted activity such as discussing wages, hours, and working conditions. The employer also agreed not to discipline employees for engaging in such activity and not to deny employees’ requests for union representation or discipline them for making such requests. The employer also settled with the terminated employee, but the terms of that agreement remain private.
Employers should be aware of employees’ right to communicate with one another regarding their wages, hours, and working conditions and their ability to do so over the Internet and still remain under the protection of federal labor laws. It is important for employers to keep this lesson in mind when drafting social media policies to ensure that they will not be construed as interfering with protected employee rights.
Morrison & Foerster Employment Law Commentary, February 2011