National Labor Relations Board Says Employee Facebook Posts About Employer Protected

February 23, 2011

I recently read an article on, Feds settle case of woman fired over Facebook comments, which discussed a settlement in Connecticut which will have a significant long-lasting impact on employers’ policies regarding their employees’ conduct on the internet. The National Labor Relations Board ("NLRB") reached a private settlement with American Medical Response of Connecticut, Inc. for the termination of an emergency medical technician who posted what the article called an expletive-filled posting which referred to the employee’s supervisor as the company’s code for a psychiatric patient. The ambulance company had an employment policy which prohibited employees from disparaging the company over the internet or depicting the company in anyway.

The illegality of these policies is found in the National Labor Relations Act ("NLRA"), which protect employees’ speech to allow them to organize. The Act provides that employees have the right to self-organization, to form, join, or assist labor organizations, to bargain and engage in other activities for the purpose of collective bargaining. This same provision prohibits employers from making policies that prevent employees from discussing their compensation and discussing unionizing.

The rationale behind the lawsuit is that the ambulance company’s policy infringed on the employee’s speech in a way that would discourage unionization. Although the emergency medical technician disparaged her supervisor, such negative comments might bring to light legitimate concerns that would lead to organization.

There are a few things that employers can take from this settlement in Connecticut:

  1. The NLRA is federal law. Even though the case was in Connecticut, the view of the NLRB would apply throughout the United States.
  2. The NLRA applies even if your employees are not organized. The NLRA protects unions and the right to unionize.
  3. Check your employee handbooks for provisions that restrict employee speech. Limiting employee speech may violate the NLRA as an effort to prevent organization. This applies to prohibitions on discussing wages and, in light of this settlement, discussing the employer or supervisors on social media sites like Facebook and Twitter.

With the increased avenues of communication, employer policies must be updated to reflect these changes. If you have questions regarding the legality of your employee handbook or manual provisions, check with an employment attorney.