NLRB Acts against Firm that Fired Employee for Posting Disparaging Comments on Facebook

In a disturbing move for employers, the National Labor Relations Board has issued a complaint against an employer that allegedly terminated an employee for posting negative comments about her supervisor on her Facebook page.

The NLRB complaint alleges that the woman’s Facebook posts were “protected concerted activity” within the meaning of the National Labor Relations Act and that the employer’s Internet posting policies contained unlawful provisions, including one that prohibited employees from making disparaging remarks about their supervisors. The NLRB concluded that such provisions constitute interference with an employee’s exercise of his or her right to engage in protected concerted activity.

If the case sticks, it removes yet another method at an employer’s disposal to protect the company reputation and keep intact civility in the workplace. Worse yet, it could open up employers to another form of litigation. The case at a minimum should put you as an employer on notice that the federal government may initiate charges against you if it receives a complaint from an employee and your Internet posting policies don’t jibe with the NLRB’s interpretation of the law.

In the case, the NLRB Hartford regional office accused American Medical Response of Connecticut, Inc., of unlawfully terminated an employee, Dawnmarie Souza, for posting negative comments about a supervisor on her Facebook page. After she made the posting, several of her co-workers posted responses supportive of her posting and then Souza followed up with more negative comments about the supervisor. The employer first suspended and then terminated her for violating its Internet posting policies.

Employment law defense attorneys disagree with the NLRB’s interpretation of what constitutes “protected concerted activity” in this case, since the woman acted alone when she made her post. They say that the decision appears to contravene the long-standing principle under legal precedent that an employee, whose termination was based on activity solely on behalf of themselves, does not engage in “concerted” activity when the action was not “engaged in with or on the authority of other employees.”

Second, attorneys say, Souza’s conduct, even if concerted, does not qualify as “protected” under another legal precedent. In that case, the Fourth Circuit U.S. Court of Appeal wrote: “[Such] … expression of criticism about management . . . is not a condition of employment that employees have a protected right to seek to improve.”

Typically, a company can’t fire someone for making work-related criticism of or complaints about a supervisor if made among other workers or brought up to management. But under the NLRB’s interpretation of the law, it’s not okay for an employee to post defamatory or highly personal comments about a supervisor outside of the workplace on the Internet – essentially a public forum.

The employer in this case will certainly go to court to defend against the NLRB action, and the resulting case could set an important legal precedent. In the meantime, the agency’s actions have an effect on all employers, whether unionized or not. It also creates uncertainty in the emerging area of workplace social media policies.