Employee Posts in Social Media May be Protected

Recent cases (Hispanics United of Buffalo (2011) and American Medical Response (2010)) brought before the NLRB involve case where employees posted complaints about working conditions on Facebook. In Hispanics United, the comments apparently started as a disparagement of a particular individual's work practices. Whereas in American Medical Response, the employee posted complaints about work conditions, combined with disparaging epithets about a manager (calling him a "dick" and a "scumbag"). In both cases, the employee was terminated.

In the American Medical complaint, company policy proscribed employees from, inter alia "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors," in its "Blogging and Internet Posting Policy." This policy is similar to one upheld (against Union opposition to it based on the quoted portion) in an NLRB Opinion letter at Sears Holdings, 18-CA-19081 (2009):

[Employees may not use social media in, inter alia,] Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.

However, the policies and cases were distinguishable on several grounds. The American Medical employee was denied union representation in the company's internal investigation and discipline, the employee apparently made a combination of the offensive remarks listed with possibly-legitimate remarks about the workplace,and the American Medical policy was less detailed and more restrictive in other details. Whereas, the Sears Holdings matter regarded only whether the policy was itself per se violative of the rights of employees to converse about work. (Another difference is that the opinion letter was produced under a Republican administration.)

In the end, American Medical settled and so no court has yet weighed the extent to which the NLRA protects employee's use of social media. Employers are understandably shy about letting these cases go to litigation. Build.com, for instance, settled a similar case before the NLRB in April of 2011. Additionally, the NLRB is considering requiring a poster, outlining the rights of workers to discuss their working conditions -- which would apparently apply even in a social media setting.

Look for my next article, which will be about the limits of Free Speech in the Employment Context.