NLRB Facebook Complaint: Update

by McGrath North Labor & Employment Group

(402) 341-3070

In November 2010, we issued a Labor and Employment Alert, regarding a “Facebook complaint” issued by the National Labor Relations Board (NLRB) against a company for: maintaining an unlawfully restrictive policy concerning employee blogs, and social media postings; and unlawfully terminating an employee because of her name-calling posts about the company and her supervisor on her Facebook page.

On her Facebook page, the employee called her supervisor a “17” (terminology for a psychiatric patient) and said her supervisor was a “d+++” and a “scum+++.”

The issue was whether an employee’s right to engage in protected and concerted activity extended to a social media platform, in this case Facebook. Under the National Labor Relations Act, an employer may not prohibit employees from discussing the terms and conditions of their employment with co-workers. That includes criticism aimed at the company.

The result of the case was anticlimactic. The parties settled; there was no hearing before an administrative law judge and no ruling by the NLRB. In its complaint, the NLRB said the company’s social media policy was overbroad. In the settlement, the company agreed to reinstate the employee, and to revise its policy.

This issue is far from resolved. On February 4, 2011, the NLRB filed another complaint, this time against Student Transportation of America, alleging, among other things, that the company’s handbook policies regarding computer, email and internet policy, has “interfered with, restrained and coerced its employees in the exercise of the rights guaranteed” under the Act.

What is an employer’s best practice?  Review your policies closely to make sure that they are not so broadly drawn as to interfere with employees’ right to discuss the terms and conditions of their employment, on premises or on the net. The only clear principle is that an absolute prohibition against the mention of the company in such postings will be alleged to be a violation of the Act.

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