NLRB Action in the Age of Facebook

Three weeks after Souza was asked to fill out the incident report and she made her comments on Facebook, she was terminated. The NLRB's complaint alleges that her termination was unlawfully based on her Facebook comments, which it says are protected under the NLRA, and for demanding union representation in conjunction with the investigation of her conduct. The complaint also alleges that the policies upon which the Board says the ambulance operator relied to terminate Souza violate the NLRA, even if they were not used to terminate her. The allegedly unlawful “Blogging and Internet Posting Policy” provides:

• Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the [Company's] Vice President of Corporate Communications in advance of the posting;
• Employees are prohibited from making disparaging, discriminatory or defamatory remarks when discussing the Company or the employee's superiors, co-workers and/or competitors.

The ambulance operator's general “Standards of Conduct,” which prohibit “Rude or discourteous behavior to a client or coworker,” are also alleged to be unlawful.

American Medical Response of Connecticut has denied that its policies are unlawful and that it violated the NLRA by terminating Souza. In public statements, the company has stated that Souza was terminated for “multiple, serious issues” and that Souza was “an employee who failed to meet the important standards necessary” for emergency medical service.

Legal Background

The NLRB's theory of the case is not novel. Though Section 7 of the NLRA most famously protects employees' right to form and join a union, it also protects employees' “right … to engage in other concerted activities for the purpose of … mutual aid and protection[.]” Boiled down to its essence, the concerted activity/mutual aid and protection provisions of Section 7 give employees the right to band together with coworkers or others to discuss and address the terms and conditions of their employment. It is an unfair labor practice in violation of Section 8(a)(1) of the NLRA for an employer to engage in any actions that “ interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7[.]” Furthermore, if an employee is engaged in union activity, Section 8(a)(3) of the NLRA makes it an unfair labor practice to “ discriminat[e] in regard to hire or tenure of employment or any term or condition of employment to … discourage membership in any labor organization[.]”

Since the NLRA was passed in 1935, the NLRB has been prosecuting employers for alleged violations of these provisions. Well before the invention of Facebook ' and personal computers and PDAs, for that matter ' an employer could violate Section 8(a)(1) of the NLRA if it maintained a policy that limited employees' Section 7 rights or took an adverse action against an employee for engaging in “protected concerted activity.” A simple example of such a violation is a supervisor observing employees discussing their wages and telling them to “break it up,” or maintaining a policy that prohibits employees from discussing their salaries with each other. That being said, not all conversations between employees are protected; the NLRB has long held that concerted activity can be unprotected if an employee defames or abuses a supervisor, is excessively disruptive, or commits a gross breach of the duty of loyalty. It is important to recognize that an employer can be accused of committing a violation of Section 8(a)(1), whether or not its employees have formed or are trying to form a union. Where an employer is alleged to have violated an employee's Section 7 rights, and a alleged purpose of the employer's actions is to undermine an incumbent union or employees' efforts to form a union, the NLRB will also charge the employer with discrimination under Section 8(a)(3).

The general theories underlying the NLRB's case against the Connecticut ambulance operator are decades old and derive directly from the language of the statute. Had Souza's conversation with her coworkers happened in the Employer's break room, and the NLRB believed that the Employer took action against her based on a supervisor's overhearing of that conversation, the legal allegations made against the Employer would be the same boilerplate used in all NLRB complaints. It is only the facts that are different.

What Has Changed?

So, if there is nothing new or unusual about the legal allegations in the complaint filed against the Connecticut ambulance operator, why has so much attention been paid to the NLRB's complaint? Political changes at the NLRB resulting from the appointment of union- and employee-friendly Board members and prosecuting attorneys may result in a change in how social media policies are viewed, even from only a year ago.

In December 2009, while a George W. Bush appointee still held the position of NLRB General Counsel, the Board's Division of Advice issued an Advice Memorandum (Sears Holdings) in which it recommended that a regional office not issue a complaint against an employer that maintained a social media policy that bears a strong resemblance to American Medical Response of Connecticut's. Critically, the Division of Advice in Sears Holdings found that maintaining a policy that prohibited “disparagement” of managers or the employer's products did not interfere with employees' Section 7 rights, because that bar was only one of many in the policy, and employees would not likely view the policy ' taken as a whole ' as a limitation on their right to engage in protected concerted activity.

While the policy in Sears Holdings is more robust than that in American Medical Response of Connecticut, in that it contains more lawful prohibitions for the allegedly unlawful to become “lost” in, the Hartford region's willingness to issue a complaint on this allegation signifies confidence that the NLRB, in its current state, is prepared to more broadly protect employee rights in the social media arena. Whichever way the decision of the Administrative Law Judge in the Connecticut ambulance operator's case goes, it is likely to be appealed to the union- and employee-friendly NLRB in Washington. As of the time of this writing, only four of the five NLRB seats are filled, three of them by former union lawyers and officials. Headed by Chairman Wilma Liebman, the NLRB as currently composed has taken significant steps in the last year to change labor law to become more union-friendly. Therefore, while the legal theories presented in this case are not new, there is the potential that the NLRB will make broad pronouncements specifically applicable to emerging fact patterns in the social media arena that differ from the guidance previously offered in Sears Holdings.

What Can Employers Do Now?

While the Connecticut ambulance operator drew the NLRB's attention because of its social media policy, this complaint should not be cause for employers who currently have such policies to rescind them, or to dissuade employers who are considering implementing such policies from going forward. However, the complaint is cause for employers to evaluate whether their current or intended policies raise issues that may attract the NLRB's attention, and to consider how such policies are enforced, so as to avoid administrative scrutiny.

Content. In addition to setting out a list of prohibitions, a useful social media policy should also inform employees about the dangers of using social media outlets. Helping employees understand the negative consequences they can bring upon themselves (personally and professionally) due to the permanence of Internet postings encourages them to appreciate the impact their words and actions can have on their employer. Of course, employers are correctly tempted to use their social media policies as extensions of their confidential information, trade secrets, and publicity policies, as well as their non-discrimination and anti-harassment policies. Indeed, the best-crafted social media policies cross-reference an employer's other rules and employees' other obligations. This makes sense, as the law increasingly regards social media outlets as simply an extension of real-world communications. Employers can be effective in regulating employee conduct in the social media arena without being unnecessarily restrictive.

Maintaining a policy that bars criticism and disparagement will probably continue to raise red flags with the NLRB, especially considering that the likely outcome of the American Medical Response case will be that those policies are facially unlawful. Therefore, while it may be appealing to regulate the content of employee speech in ways other than prohibiting what would otherwise be unlawful (e.g., defamation), such regulation could make your company a target. Remember, where employee conduct and speech is highly egregious, an employer can take action against an employee regardless of whether a policy directly bars specific transgressions in the social media arena.

Consistent enforcement. Even a tightly crafted social media policy that does not violate the NLRA can become a breeding ground for administrative complaints if it is unevenly enforced. An employer that ramps up its investigation of its employees' online activities in response to reports of “disparaging” comments runs a significant risk of violating employees' Section 7 rights. Instead, a responsible course is to continually remind employees of their responsibilities, and inform them that the company reserves its rights to take action consistent with its rights under the law just as if the employees' comments were made offline.

Management considerations. While rank-and-file employees have rights under Section 7 of the NLRA, supervisors and managers generally do not. Therefore, employers may (and likely should) maintain different and more stringent rules with respect to them. Because managers can bind the company, employers may wish to carefully control what they say about the company online, and there are many fewer restrictions on an employer's regulation of managers/supervisors. Moreover, employers may wish to bar supervisors and managers from “friending” or having other contact with employees on social media outlets, so as reduce the temptation to discipline employees based upon content that is inflammatory, but would result in unfair labor practice allegations if it became the subject of discipline. Additionally, minimizing contact between employees and managers online should help limit the potential for allegations of unlawful surveillance of employees' protected concerted activity ' an issue not presented in the American Medical Response of Connecticut case, but sure to arise in the future.

Follow new developments. The complaint against American Medical Response of Connecticut is scheduled to be heard by an Administrative Law Judge beginning on Jan. 25, 2011. Employers should monitor this and similar cases to determine their exposure. Of course, employers' concerns with how their employees use social media should not be limited to the possibility of liability under the NLRA. Employers are also at risk under local, state, and federal discrimination laws, state and federal computer crime laws, federal wiretap laws, and under theories of tort liability, such as invasion of privacy. Additionally, questions of discoverability in litigation of social media interactions are constantly evolving. Careful employers will keep an eye on all these areas to ensure that they do not become the next “test case” in this increasingly prevalent field.

Brian Herman is an attorney with Fisher & Phillips, a national labor and employment law firm that represents employers. He may be reached at [email protected] or 404-240-5853. This article should not be construed as offering legal advice. Each employer's situation is different.

On Oct. 27, 2010, Region 34 of the National Labor Relations Board in Hartford, CT, issued an administrative complaint against American Medical Response of Connecticut, an ambulance operator, alleging that it violated both Section 8(a)(1) and Section 8(a)(3) of the National Labor Relations Act by terminating an employee and for maintaining a policy in its handbook that trammels employees' rights under the NLRA. Usually, the mere allegation that a company has violated the NLRA ' irrespective of the gravity of the claims ' is not news. But this partciular complaint received nationwide media attention ' print, television, and online ' because the allegations centered on an employee's use of Facebook, and her employer's alleged reliance on her Facebook postings in terminating her employment.

What Happened

A customer called in a complaint regarding services provided by Dawnmarie Souza, an Emergency Medical Technician. Souza's supervisor asked her to complete a written incident report. Souza demanded union representation, and the NLRB alleges that she did so because she “had reasonable cause to believe [the incident report] would result in disciplinary action against her.” The complaint alleges that she was unlawfully denied union representation. Later that day, the complaint alleges, Souza “engaged in concerted activities with other employees by criticizing [her] supervisor ' on her Facebook page.” While the complaint does not allege the extent of other employees' participation, the Board's press release explains that Souza “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 [Souza].” Various media outlets have reported that Souza called her supervisor vulgar names and compared him with a psychiatric patient.

Three weeks after Souza was asked to fill out the incident report and she made her comments on Facebook, she was terminated. The NLRB's complaint alleges that her termination was unlawfully based on her Facebook comments, which it says are protected under the NLRA, and for demanding union representation in conjunction with the investigation of her conduct. The complaint also alleges that the policies upon which the Board says the ambulance operator relied to terminate Souza violate the NLRA, even if they were not used to terminate her. The allegedly unlawful “Blogging and Internet Posting Policy” provides:

• Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the [Company's] Vice President of Corporate Communications in advance of the posting;
• Employees are prohibited from making disparaging, discriminatory or defamatory remarks when discussing the Company or the employee's superiors, co-workers and/or competitors.

The ambulance operator's general “Standards of Conduct,” which prohibit “Rude or discourteous behavior to a client or coworker,” are also alleged to be unlawful.

American Medical Response of Connecticut has denied that its policies are unlawful and that it violated the NLRA by terminating Souza. In public statements, the company has stated that Souza was terminated for “multiple, serious issues” and that Souza was “an employee who failed to meet the important standards necessary” for emergency medical service.

Legal Background

The NLRB's theory of the case is not novel. Though Section 7 of the NLRA most famously protects employees' right to form and join a union, it also protects employees' “right … to engage in other concerted activities for the purpose of … mutual aid and protection[.]” Boiled down to its essence, the concerted activity/mutual aid and protection provisions of Section 7 give employees the right to band together with coworkers or others to discuss and address the terms and conditions of their employment. It is an unfair labor practice in violation of Section 8(a)(1) of the NLRA for an employer to engage in any actions that “ interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7[.]” Furthermore, if an employee is engaged in union activity, Section 8(a)(3) of the NLRA makes it an unfair labor practice to “ discriminat[e] in regard to hire or tenure of employment or any term or condition of employment to … discourage membership in any labor organization[.]”

Since the NLRA was passed in 1935, the NLRB has been prosecuting employers for alleged violations of these provisions. Well before the invention of Facebook ' and personal computers and PDAs, for that matter ' an employer could violate Section 8(a)(1) of the NLRA if it maintained a policy that limited employees' Section 7 rights or took an adverse action against an employee for engaging in “protected concerted activity.” A simple example of such a violation is a supervisor observing employees discussing their wages and telling them to “break it up,” or maintaining a policy that prohibits employees from discussing their salaries with each other. That being said, not all conversations between employees are protected; the NLRB has long held that concerted activity can be unprotected if an employee defames or abuses a supervisor, is excessively disruptive, or commits a gross breach of the duty of loyalty. It is important to recognize that an employer can be accused of committing a violation of Section 8(a)(1), whether or not its employees have formed or are trying to form a union. Where an employer is alleged to have violated an employee's Section 7 rights, and a alleged purpose of the employer's actions is to undermine an incumbent union or employees' efforts to form a union, the NLRB will also charge the employer with discrimination under Section 8(a)(3).

The general theories underlying the NLRB's case against the Connecticut ambulance operator are decades old and derive directly from the language of the statute. Had Souza's conversation with her coworkers happened in the Employer's break room, and the NLRB believed that the Employer took action against her based on a supervisor's overhearing of that conversation, the legal allegations made against the Employer would be the same boilerplate used in all NLRB complaints. It is only the facts that are different.

What Has Changed?

So, if there is nothing new or unusual about the legal allegations in the complaint filed against the Connecticut ambulance operator, why has so much attention been paid to the NLRB's complaint? Political changes at the NLRB resulting from the appointment of union- and employee-friendly Board members and prosecuting attorneys may result in a change in how social media policies are viewed, even from only a year ago.

In December 2009, while a George W. Bush appointee still held the position of NLRB General Counsel, the Board's Division of Advice issued an Advice Memorandum (Sears Holdings) in which it recommended that a regional office not issue a complaint against an employer that maintained a social media policy that bears a strong resemblance to American Medical Response of Connecticut's. Critically, the Division of Advice in Sears Holdings found that maintaining a policy that prohibited “disparagement” of managers or the employer's products did not interfere with employees' Section 7 rights, because that bar was only one of many in the policy, and employees would not likely view the policy ' taken as a whole ' as a limitation on their right to engage in protected concerted activity.

While the policy in Sears Holdings is more robust than that in American Medical Response of Connecticut, in that it contains more lawful prohibitions for the allegedly unlawful to become “lost” in, the Hartford region's willingness to issue a complaint on this allegation signifies confidence that the NLRB, in its current state, is prepared to more broadly protect employee rights in the social media arena. Whichever way the decision of the Administrative Law Judge in the Connecticut ambulance operator's case goes, it is likely to be appealed to the union- and employee-friendly NLRB in Washington. As of the time of this writing, only four of the five NLRB seats are filled, three of them by former union lawyers and officials. Headed by Chairman Wilma Liebman, the NLRB as currently composed has taken significant steps in the last year to change labor law to become more union-friendly. Therefore, while the legal theories presented in this case are not new, there is the potential that the NLRB will make broad pronouncements specifically applicable to emerging fact patterns in the social media arena that differ from the guidance previously offered in Sears Holdings.

What Can Employers Do Now?

While the Connecticut ambulance operator drew the NLRB's attention because of its social media policy, this complaint should not be cause for employers who currently have such policies to rescind them, or to dissuade employers who are considering implementing such policies from going forward. However, the complaint is cause for employers to evaluate whether their current or intended policies raise issues that may attract the NLRB's attention, and to consider how such policies are enforced, so as to avoid administrative scrutiny.

Content. In addition to setting out a list of prohibitions, a useful social media policy should also inform employees about the dangers of using social media outlets. Helping employees understand the negative consequences they can bring upon themselves (personally and professionally) due to the permanence of Internet postings encourages them to appreciate the impact their words and actions can have on their employer. Of course, employers are correctly tempted to use their social media policies as extensions of their confidential information, trade secrets, and publicity policies, as well as their non-discrimination and anti-harassment policies. Indeed, the best-crafted social media policies cross-reference an employer's other rules and employees' other obligations. This makes sense, as the law increasingly regards social media outlets as simply an extension of real-world communications. Employers can be effective in regulating employee conduct in the social media arena without being unnecessarily restrictive.

Maintaining a policy that bars criticism and disparagement will probably continue to raise red flags with the NLRB, especially considering that the likely outcome of the American Medical Response case will be that those policies are facially unlawful. Therefore, while it may be appealing to regulate the content of employee speech in ways other than prohibiting what would otherwise be unlawful (e.g., defamation), such regulation could make your company a target. Remember, where employee conduct and speech is highly egregious, an employer can take action against an employee regardless of whether a policy directly bars specific transgressions in the social media arena.

Consistent enforcement. Even a tightly crafted social media policy that does not violate the NLRA can become a breeding ground for administrative complaints if it is unevenly enforced. An employer that ramps up its investigation of its employees' online activities in response to reports of “disparaging” comments runs a significant risk of violating employees' Section 7 rights. Instead, a responsible course is to continually remind employees of their responsibilities, and inform them that the company reserves its rights to take action consistent with its rights under the law just as if the employees' comments were made offline.

Management considerations. While rank-and-file employees have rights under Section 7 of the NLRA, supervisors and managers generally do not. Therefore, employers may (and likely should) maintain different and more stringent rules with respect to them. Because managers can bind the company, employers may wish to carefully control what they say about the company online, and there are many fewer restrictions on an employer's regulation of managers/supervisors. Moreover, employers may wish to bar supervisors and managers from “friending” or having other contact with employees on social media outlets, so as reduce the temptation to discipline employees based upon content that is inflammatory, but would result in unfair labor practice allegations if it became the subject of discipline. Additionally, minimizing contact between employees and managers online should help limit the potential for allegations of unlawful surveillance of employees' protected concerted activity ' an issue not presented in the American Medical Response of Connecticut case, but sure to arise in the future.

Follow new developments. The complaint against American Medical Response of Connecticut is scheduled to be heard by an Administrative Law Judge beginning on Jan. 25, 2011. Employers should monitor this and similar cases to determine their exposure. Of course, employers' concerns with how their employees use social media should not be limited to the possibility of liability under the NLRA. Employers are also at risk under local, state, and federal discrimination laws, state and federal computer crime laws, federal wiretap laws, and under theories of tort liability, such as invasion of privacy. Additionally, questions of discoverability in litigation of social media interactions are constantly evolving. Careful employers will keep an eye on all these areas to ensure that they do not become the next “test case” in this increasingly prevalent field.

Brian Herman is an attorney with Fisher & Phillips, a national labor and employment law firm that represents employers. He may be reached at [email protected] or 404-240-5853. This article should not be construed as offering legal advice. Each employer's situation is different.