January 25, 2011

Companies across the country, whether in union or non-union settings, should consider implementing or reevaluating their social media policies following an action by the National Labor Relations Board (NLRB) that may have wide-spread ramifications.

The Hartford regional office of the NLRB recently issued an unfair labor practice complaint alleging that an ambulance service company, American Medical Response of Connecticut, Inc. (Company), unlawfully terminated an employee for posting negative remarks about her supervisor on her personal Facebook page. The NLRB contended the firing violated the employee’s right to protest her working conditions provided by Section 7 of the National Labor Relations Act (Act).

Allegations of Complaint

The Hartford regional office of the NLRB issued this fall an unfair labor practice complaint alleging that an ambulance service company, American Medical Response of Connecticut, Inc. (Company), unlawfully terminated an employee for posting negative remarks about her supervisor on her personal Facebook page. The NLRB contended the firing violated the employee’s right to protest her working conditions provided by Section 7 of the National Labor Relations Act (Act).

The NLRB also claimed that provisions of the Company’s blogging and Internet posting policy violated Section 7 of the Act because they were overly broad and unlawfully interfered with an employee’s right to engage in protected concerted activity. The policy at issue contained language that prevented employees from posting disparaging remarks about the Company and its supervisors, or from depicting the Company on the Internet without its permission.

A hearing in the case is scheduled for January 25, 2011.

National Labor Relations Act Protections

Section 7 of the Act protects the rights of workers to communicate with each other regarding wages, hours, and other terms and conditions of employment. This protection applies in both union and non-union settings. The proper inquiry to determine if a company’s policy violates the Act is whether the policy would reasonably tend to chill employees in the exercise of their Section 7 rights. If so, the mere maintenance of the policy may violate the Act, even where there is no evidence of enforcement.

The NLRB’s decision to issue the complaint signals a departure from its previous guidance regarding social media policies.

In 2009, for example, the General Counsel’s Division of Advice (Division) published an advisory memorandum in which it concluded that an employer’s social media policy (with no significant difference from the policy at issue in the current case) did not violate Section 7 of the Act. In reaching this conclusion, the Division stated that, when read in context, it was part of a larger policy which prohibited egregious conduct and explicitly stated that it was designed to protect the employer and the employees’ interests rather than to restrict the flow of useful and appropriate information.

Going Forward Risk Reduction

By announcing the complaint through a national press release,  the NLRB appears to be signaling to employers that it will take a heightened interest in employment policies that discourage employees from discussing their work environment with other employees or from stating their views on unionization. Accordingly, employers in both union and non-union environments should review their social media policies to ensure compliance with the Act.

Companies should consider taking the following steps to reduce their legal exposure:

• Include a statement in the employer’s employment policies manual that employees have no privacy, confidentiality, or ownership expectations in data stored on company systems or in any communications generated using employer-provided devices.
• Designate specific employees who alone are authorized to provide verbal or electronic references for employees or former employees.
• Train employees regarding the company’s social media policy.
• Require employees to sign consent forms regarding workplace monitoring of electronic communications.
• If an employer requires an employee to contribute to a blog or to network on social media sites (e.g., LinkedIn) as part of his or her job and the employee is entitled to overtime pay, ensure time spent on these activities is recorded as work hours.
• Review other personnel policies that may relate to social media (e.g., solicitation, confidential information, off-duty conduct, references, bulletin board posting, procedures for internal grievances, wages, or anti-disparagement) to ensure compliance with applicable laws.
• Do not use protected information obtained through social networks to make employment decisions. For example, if employers acquire medical history or genetic information about prospective or current employees, such employers could violate the Genetic Information Nondiscrimination Act (GINA) if they use such information to make employment decisions. The EEOC’s final regulations implementing Title II of GINA are effective January 10, 2011.

 Adherence to general best practices also will serve to reduce risk in this area. For example, companies should preserve the at-will status of employees, where applicable, by including a statement that none of the policies create an implied contract or alter an employee’s at-will status.

In addition, creating sound employment policies are not enough—they need to be implemented. Employers should create policies and practices designed to ensure timely and consistent enforcement of their employment policies.

Hill Wallack LLP’s Labor and Employment Group

Hill Wallack LLP’s Labor and Employment Group represents clients in state and federal matters and before administrative agencies. Our experience extends across the full spectrum of workplace issues, including preparing employment policies and conducting workplace investigations, as well as handling employment litigation regarding claims of disability, discrimination and sexual harassment, termination, wage and hour compliance, whistleblower activities, collective bargaining agreements, workforce reductions, and occupational safety and health matters.

Please visit our blog, “At Work: Solutions for Employers & Employees".

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For more information, contact one of the attorneys who work in this area:

In New Jersey:

Suzanne M. Marasco, Esq.; Rocky L. Peterson, Esq.; Irene N. Komandis, Esq.; Dana M. Lane, Esq.; Christina L. Saveriano, Esq.; Kenneth A. Skroumbelos, Esq. or  Susan L. Swatski, Esq.

In Pennsylvania:

Joanne Rathgeber, Esq.;  Carolyn M. Plump, Esq. or  Tiffanie C. Benfer, Esq.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.