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Vulgar Facebook Posting May Constitute Protected Concerted Activity

Labor & Employment Alert — November 12, 2010

by Judd H. Lees

At Williams Kastner’s recent half-day Labor and Employment Seminar, we discussed the expansion of retaliation protection for employees. One of the areas of recent expansion is the National Labor Relations Act which provides retaliation protection for traditional union activities but also more general “concerted, protected activity” for the mutual aid and protection of employees. In American Medical Response of Connecticut, Inc., an employee alleged that critical comments on her Facebook page about her supervisor constituted the requisite “concerted, protected activity” which could not be the basis for a subsequent discharge. A Regional Director for the National Labor Relations Board apparently agreed and has issued a complaint against the employer.

American Medical Response of Connecticut, Inc. is an ambulance service. Like many employers it has adopted several social media policies in response to the increasing prevalence of critical postings about employers posted by employees on Facebook and other social media sites. One written policy prohibited employees from disparaging the company or its management and prohibited the depiction of the company “in any way” on the Internet without the company’s prior approval. An emergency medical technician working for the company posted a number of vulgar comments about her supervisor on her Facebook page and criticized the company for promoting this individual to a supervisory position. The comments were apparently prompted by her supervisor’s investigation into customer complaints against the employee. The employee’s Facebook comments drew written support and responses from several fellow employees. The employee was later terminated and filed an unfair labor practice charge with the Regional office of the National Labor Relations Board alleging that the employer’s social media policies were overbroad and that her termination was unlawfully tied to conduct protected under the NLRA.

The Regional office investigated and determined there was merit to the charge and has issued a complaint against the company. The Regional Director determined that the social media policy at issue was overly broad and could have interfered with the employee’s right to engage in protected activity and may have played an unlawful role in her termination. In essence, the Region applied the same type of protection afforded employee talk around the water cooler about working conditions, to Facebook and other social media sites. The employer has denied that the employee’s termination had anything to do with the postings and has argued that its policies are lawful under the National Labor Relations Act. The hearing is scheduled for January of 2011.

It is important to note that the decision to issue the complaint does not constitute a final Board ruling that such conduct is protected under the Act or that social media is the same as the workplace. The matter still has to proceed to hearing before an administrative law judge and, in the event either party is unhappy with the ruling, may result in an appeal to the Board for a final ruling.

Hard on the heels of this ruling was a recent arbitration award in Washington-Baltimore Newspaper Guild, Local 32035 & Radio Free Asia, in which an arbitrator ordered the reinstatement of a reporter who used Twitter to air his response to complaints by two subjects of a story he had written. These complaints were contained in their blogs. In terminating the reporter, employer Radio Free Asia claimed that he had been warned not to use Twitter to criticize the subjects of his stories. The arbitrator determined that the warning provided to the reporter had been unclear and ordered the reporter’s reinstatement.

Both cases underscore the need for a constant review and update of employer policies governing employee use of social media. The primary focus of such rules should pertain to improper use of company equipment and unprotected activity at the workplace. When the policies deal more generally with disparagement outside the workplace, the policies come dangerously close to restricting speech and retaliating for whistle blower activity. This is especially true if fellow employees are interacting with the social media “discussion.”  We will keep you apprised of the ruling in the American Response of Connecticut decision as well as other rulings in the fast-developing social media arena.

Judd H. Lees is a Member in the Seattle office of Williams Kastner. He has 30 years of experience practicing labor and employment law, and currently serves as Chair of the firm’s Labor & Employment Practice Group. Judd represents both unionized and nonunionized employers in the private and public sector, including clients in the construction, manufacturing and the transportation industries before federal and state agencies, including the Department of Labor, National Labor Relations Board and the Washington State Department of Labor and Industries.