The National Labor Relations Board (NLRB) has alleged that an employee was illegally fired after she posted critical comments about her boss on her Facebook page in a complaint that may signal Board intention to focus enforcement efforts on social media policies and their effect on employee rights under the National Labor Relations Act (NLRA).

The NLRB issued the complaint last week—less than a year after issuing an advice memorandum about social media policies and employee rights under the NLRA.

According to the NLRB press release, an employee of American Medical Response of Connecticut, Inc., posted negative comments about her supervisor on her Facebook page after the supervisor asked her to prepare a report regarding a customer complaint about her work and denied her request for union representation in connection with the complaint. Several coworkers posted supportive messages on Facebook, and the employee responded by posting additional negative comments.

The company suspended and then terminated the employee, citing its policies regarding Internet posting and blogging. The NLRB’s investigation found that the Facebook postings constituted protected concerted activity under the NLRA and that the company’s social media policy was overbroad and unlawful, particularly in prohibiting the posting of disparaging remarks about the company or its supervisors.

A hearing before an administrative law judge will be held early next year.

All employers, whether their workforces are unionized or not, should take note of the NLRB’s focus on social media policies. Given the evolving availability, capability, and use of social networking, blogging, and similar media, employers should evaluate their policies regarding employee speech outside the workplace. Ballard Spahr has extensive experience with the issues associated with employees’ use of social media and has assisted employers in assessing the need for a social media policy and in drafting and reviewing such policies. Please feel free to contact Louis L. Chodoff, 856.761.3436 or chodoffl@ballardspahr.com.


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