Hunton Employment & Labor Perspectives

Employees are increasingly talking about supervisors and other employees on social networking sites, and sometimes the talk can get nasty.  Complaining about co-workers and supervisors is not new.  However, distributing those complaints via the internet is.  Employers often seek to crack down on such negative talk via policies and disciplinary action.  However, Lafe Solomon, the NLRB’s acting general counsel, has publicly stated that employees have the right to communicate jointly about working conditions, regardless of whether those communications are made on social networking sites or at the company water cooler.  The NLRB will decide the validity of Mr. Solomon’s statement in connection with a recently-issued complaint.

The NLRB’s Complaint

On October 27, 2010, the NLRB’s Connecticut Regional Office (Region 34) issued a complaint alleging that American Medical Response of Connecticut illegally terminated an employee for, among other things, violating the Company’s social media policy.  At issue is whether an employee’s unflattering and critical social media  posts about her supervisor, which triggered co-workers to post supportive messages, constitute a protected concerted action under the National Labor Relations Act (the “Act”).   The NLRB also alleges that the Company’s social media policy, which prohibits such conduct, violates the Act because it tends to chill employees from exercising their protected right to protest working conditions.  This despite a prior guidance that permitted such a policy.  A hearing on the complaint has been set for January 25, 2011.
 
Factual Background

In November 2009, the Company received a customer complaint regarding bargaining unit member Dawnmarie Souza’s (“Souza”) rude and discourteous service.  Souza, who was requested by her supervisor to prepare a response to the customer’s complaint, asked her supervisor to allow a union representative to assist in preparing the response.  A few hours after her supervisor denied this request, Souza posted comments on her personal social networking page mocking her supervisor.  In addition to using vulgar language to characterize her supervisor, Souza also referred to her supervisor as a “17”— company-speak for a psychiatric patient.  Souza’s postings drew supportive comments from her co-workers, which, in turn, led Souza to post further negative comments about her supervisor.  Souza was eventually terminated.

At all material times during Souza’s employment, the Company maintained a Blogging and Internet Posting Policy which prohibited employees from, among other things, making “disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers….”

The Bottom Line

The NLRB’s complaint against American Medical Response, in tandem with Mr. Solomon’s publicly-expressed sentiment, represent a troubling departure by the Board on prior advice it issued regarding social networking policies. It is unclear whether the Board will ultimately agree with Mr. Solomon that an employee’s comments made on a social networking site are analogous to those made around a company water cooler, particularly since such view would require overlooking the reality that the recipients of such communications will necessarily include both employees and non-employees alike.  What is clear, however, is that the Board is actively challenging social networking and other workplace policies.  For this reason, all employers are encouraged to carefully review their social networking and other policies that may get the attention of the NLRB.