In November, the National Labor Relations Board (NLRB) determined that Facebook posts are legally protected speech despite a company having a policy that prohibits employees from discussing the company on social media sites. The ruling came in a case involving Dawmarie Souza, who was fired after criticizing her supervisor at American Medical Response of Connecticut on her Facebook page. The NLRB announced its intent to prosecute, and scheduled a hearing January 25. The complaint hearing on the case was postponed to February 8.
According to the New York Times story in November:
“Lafe Solomon, the [NLRB] board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization. The labor board said the company’s Facebook rule was ‘overly broad’ and improperly limited employees’ rights to discuss working conditions among themselves.
This case could have far implications for all employers, regardless of union involvement. Until further clarification is issued, employers should be cautious about their social media policies. In November, Morgan Lewis Employment Law issued an alert about what the NLRB ruling means to employers (PDF), along with this recommendation:
“All private sector employers should take note of this issue, regardless of whether their workforce is represented by a union. Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” In addition, employers should consider whether disciplining an employee for violating such a policy could lead to a charge that the discipline violates the NLRA. An employee who is disciplined for engaging in conduct that is protected by the NLRA may challenge the discipline by filing an unfair labor practice charge, even if the employee is not represented by a union.”