Employer Restrictions On Facebook Postings Critical Of Company Could Violate National Labor Relations Act

On October 27, the Hartford Regional Office of the National Labor Relations Board (NLRB) issued an unfair labor practice complaint against American Medical Response of Connecticut, Inc. (AMR), alleging that AMR violated the National Labor Relations Act (NLRA or Act) by terminating an employee for criticizing, on her Facebook page, her AMR supervisor. In a press release, the NLRB Office of the General Counsel asserts that the employee's Facebook postings constituted protected concerted activity, and that AMR's blogging and Internet posting policy contains unlawful provisions, which provisions, in and of themselves, constitute interference with employees' exercise of their right to engage in protected concerted activity.

The employee's Facebook postings, which she composed at home, and which elicited supportive responses from her co-workers, included: "Love how the company allows a 17 to be a supervisor," referring to AMR's code for a psychiatric patient. The employee also referred to her boss as a "scumbag as usual."

The problematic portions of AMR's blogging and Internet posting policy were:

Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company, in any way, including but not limited to any Company uniform, corporate logo or an ambulance, unless the employee receives written approval ... in advance of the posting;

Employees are prohibited from making disparaging comments or discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers, and/or competitors.

A hearing on this case was scheduled for February 8, but the matter was settled the day before, with AMR agreeing to revise its policy. (The discharge resolved through a separate, private agreement between AMR and the former employee.) However, the mere issuance of the complaint raises significant issues.

Existing Law

The NLRA makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 are limited. Section 7 states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Thus, while Section 7 rights are not...