Can an Employer Discipline an Employee for Comments on Facebook?

Given the widespread use of social media, it was only a matter of time before employees alleged that being disciplined for comments on Facebook violated Section 8(a)(1) of the National Labor Relations Act, which prohibits discrimination against employees for engaging in “concerted activity.”

The ARM Case: Employers on Notice

Recently, the Hartford office of the National Labor Relations Board (NLRB) issued a complaint against American Medical Response (AMR) for disciplining an emergency medical technician who posted comments critical of a supervisor in a Facebook exchange with her coworkers. The comments included expletives and suggested that the supervisor had psychological problems.

AMR disciplined the employee for violating the company’s social media policy, which prohibited employees from “making disparaging, discriminatory, or defamatory comments when discussing the company or the employees, supervisors, coworkers and/or competitors.”

The case was settled in Feb. 2011, with AMR agreeing to rewrite its social media policy so that it would not restrict employees from discussing their wages, hours, and working conditions with coworkers. Many commentators believed the case signified an aggressive enforcement posture on the part of the NLRB against all employers who set parameters for employee comments on the Internet.

The Wal-Mart Case: A Balanced Approach

In fact, the NLRB’s handling of Facebook cases reflects an approach that attempts to strike a balance between employer and employee interests under Section 8(a)(1).

For example, in a case earlier this year involving Wal-Mart, the NLRB Division of Advice concluded that a complaint should not be issued in a case in which an employee received a one-day suspension for posting the following comment on his Facebook page: “Wuk-Falmart! I swear this tyranny doesn’t end in this store. They are about to get a wake up call because lots are about to quit!”

The employee also posted comments complaining that he was “chewed out” for putting merchandise in the wrong place and that he was talking to the manager about quitting. A coworker responded, saying, “hang in there.”

Concluding that a complaint should not be issued, the Advice Division found that the Facebook comments dealt with “an individual gripe” rather than an effort to convince coworkers to engage in group action. In support of this finding, the Advice Division noted that the “hang in there” comment indicated that the responding coworker “only viewed the posting to be a plea for emotional support.”

Where the NLRB Stands

This and other recent findings by the Advice Division indicate that the NLRB’s assessment of Facebook cases depends on the specific statements that were posted, whether the posts were available to only family and friends or directed to coworkers and other employees, and the nature of the responses from coworkers. To the extent that a complaint involves an individual gripe, with no attempt to enlist other employees in a joint action or discussion of wages and working conditions, the NLRB will not pursue the case.

There’s no doubt, however, that the complaint filed against AMR indicates that the NLRB will challenge a generally-worded employer policy that could be interpreted as prohibiting Internet discussions among employees regarding wages and working conditions.

While this interpretation of Section 8(a)(1) has not been adopted by an Administrative Law Judge, members of the NLRB itself, or an Appellate Court upon review, this enforcement position deserves employers’ attention, along with the need to carefully review the specific facts of Facebook postings before taking action against an employee.

The NLRB clarified its position in a 24-page memorandum issued Aug. 18, 2011, by the agency’s Acting General Counsel. The memo reviews the NLRB’s enforcement posture in social media cases and discusses its assessment of employers’ written social media policies. Read the entire document (OM 11-74) at nlrb.gov.

Richard Voigt is a partner in the law firm of McCarter & English in Hartford. He can be reached at rvoigt@mccarter.com.