Earlier this month, the National Labor Relations Board (NLRB) filed a complaint against American Medical Response of Connecticut, alleging that the company illegally terminated an employee after posting negative comments about her supervisor on her Facebook page. The former employee's posting allegedly was made from her personal computer and drew support from several of co-workers. Upon learning of this posting, the company suspended and ultimately terminated the individual's employment for violation of company Internet policies.

The NLRB challenged this termination and alleged that the terminated employee engaged in “protective concerted activity,” i.e., employees acting in concert to address the terms and conditions of their employment, which is protected under Section 7 of the National Labor Relations Act (NLRA). Specifically, the NLRB stated that the company's blogging and Internet posting policy was unlawful as it prohibited employees from making comments about the company or its supervisors. The NLRB also attacked the company's policy against “depicting the company in any way” via the Internet without permission, and argued that this policy interfered with employee's right to “engage in protected concerted activity.”

This recent action by the NLRB has caused many employers to question whether they can, or should, have any policy regarding social media and Internet postings. Recognizing that social media was inevitable, many employers initially implemented social media and Internet posting policies in an effort to protect against having their confidential information circulated on the Internet as well as to make sure their businesses were cast in a light most favorable to their customers and investors. Further, these policies were considered as a measure of protection against possible claims of sexual harassment or discrimination that occurred after an employee made inappropriate postings about (or directed toward) another employee on websites such as Facebook, Twitter or MySpace. However, now, given the NLRB's recent position on this issue, employers wonder what, if anything, they can do to protect their companies without triggering other litigation.

Rather than discard such policies altogether, employers should recognize that a sound social media policy still serves as valuable tool in protecting against the disclosure of confidential business information, promptly addressing allegations of harassment or discrimination and ensuring the continuance of favorable business attention. That said, employers should review their existing social media policies and any related disciplinary policies to ensure conformity with Section 7 of the NLRA. For example, often, social media policies include a prohibition against making any negative comments about another employee. Based on the NLRB's current position, companies may want to slightly modify this policy and include language explaining that this prohibition would not be used in a way that might interfere with the employees' rights under the applicable law.

Finally, employers, in consultation with counsel, should examine its correlating discipline policy if an employee acts contrary to the social media policy. Employers should proceed with caution in disciplining an employee if he or she violates the social media policy as a result of making negative comments about work and are deemed “concerted” in nature. Thus, prior to issuing any disciplinary action, the employer should determine if the employee's posting was contrary to any other applicable policies (i.e., anti-harassment policy), and if discipline could be issued for those reasons and not due to the exercise of his or her rights under Section 7 of the NLRA.

Tina A. Syring-Petrocchi is a partner in Barnes & Thornburg LLP's Minneapolis office and a member of the firm's Labor and Employment Law Department.

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