Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

By Nelson Cary and Ashley Manfull

Recognizing that the increased use of social media by employees commenting on work-related matters has led to many complex issues for employers, the Acting General Counsel (AGC) issued its first report in August 2011 summarizing cases involving social media issues. As the complexities of this issue are far from resolved, the AGC has now issued a second report summarizing 14 new social media cases that the AGC has considered.

The AGC’s second report (pdf), issued on January 24, 2012, focuses significant attention on (1) whether an employee’s use of social media to comment on various work-related issues constitutes concerted protected activity; and (2) whether employer policies seeking to impose limitations on an employee’s ability to comment on work-related issues are overly broad or could reasonably be interpreted to prohibit comment on Section 7 protected speech.

The 35-page report may be well worth the read for labor professionals struggling to understand the extent to which employee comments in a public forum can be regulated and/or subject to disciplinary action. For those with less time or interest, however, some of the more noteworthy highlights in the report are summarized below.

Of the 14 cases briefed in the AGC’s report, seven of them address whether employer policies limiting employee communications are overly broad. In five of the seven cases, the AGC determined that the following policy language was overly broad and thus unlawful: 

·         Employer rule prohibiting “making disparaging comments about the company through any media, including online blogs”;

·         Employer rule that employee discussion of terms and conditions must be in an “appropriate” manner, without defining “appropriate”;

·         Employer work rule prohibiting “insubordination or other disrespectful conduct” and “inappropriate conversation”; and

·         Employer policy prohibiting disclosure of confidential, sensitive or non-public information concerning the company without further definition. 

However, in two of the cases analyzed, employer social media policies withstood scrutiny where the employer’s rule specifically listed plainly egregious conduct that was prohibited (vulgar, obscene, threatening, intimidating, harassing, and/or unlawful discriminatory comments) and limited employee disclosure of confidential information to matters protected by federal law, like securities or health information laws.

Eleven of the 14 cases summarized by the AGC addressed whether an employee was properly terminated because of on-line forum posts. In five of the 11 cases, the AGC determined that the employee was discharged for engaging in protected concerted activity:

·         Employee initiated Facebook discussion because Employer transferred her to a less lucrative position, which included discussion of potential for class action lawsuit;

·         Employee posted comments on Facebook complaining about being reprimanded for her involvement in fellow employees' work-related problems;

·         Employee posted message on Facebook about the promotion of a coworker she believed to be unfair; post led to three responses from co-worker “friends” discussing the promotion and mismanagement concerns;

·         Employee engaged in Facebook conversation with other employees concerning negative attitude of Operations Manager and “drama” he caused at work; and

·         Employee made numerous on-line posts related to labor issues, unfair labor practice charges filed, and critical of employer’s management style, which elicited supportive responses from numerous employees.

On the other hand, in six of the 11 cases, the AGC found that the employee was not unlawfully terminated for engaging in the following types of conduct.  For example: 

·         Employee Facebook posts griping about her supervisor reprimanding her for failing to perform a task she was not instructed to perform;

·         Employee Facebook post complaining about her coworker’s job performance where it had a very limited connection to the terms and conditions of her employment;

·         Employee’s angry, profane comments on Facebook ranting against her coworkers that they blamed her for everything and she hated them.

·         Employee Facebook post that her coworker’s annoying habit was driving her nuts and she was “about to beat him with a ventilator.”

Labor relations professionals should continue to keep several points in mind when attempting to determine the landscape of social media cases in light of the AGC’s August 2011 and January 2012 reports: 

·         The AGC’s reports only summarize conduct that the AGC believes violates the law. Until the complaints make their way to the NLRB, it is unknown whether the NLRB will agree with the AGC’s conclusions;

·         Whether a violation of Section 7 exists is an extremely fact intensive question. Each employment action and policy must be examined on its own set of facts and circumstances; and

·         Employer policies regarding employee conduct and use of social media should be crafted from the perspective of what conduct a “reasonable” employee would understand as being limited. Policies restricting employee posts should avoid overly broad language, ambiguous words, and undefined terms.

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By Nelson Cary and Ben Shepler

New year, same controversial NLRB. In a decision that seems destined for appeal, the NLRB recently ruled that employers may not utilize individual arbitration agreements that prevent employees from joining in employment-related class or collective actions. The NLRB’s decision is notable because, among other things, it arguably conflicts with both the Federal Arbitration Act (FAA) and with a recent pro-arbitration decision issued by the United States Supreme Court.

In D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012) (pdf), the NLRB held that homebuilder D.R. Horton committed an unfair labor practice by requiring employees to sign a mandatory arbitration agreement that (1) forced employees to submit employment-related disputes to binding arbitration and (2) prohibited the arbitrator from considering these disputes as part of a class or collective action. This prohibition came under fire in 2008, when a former D.R. Horton employee attempted to initiate a collective action arbitration alleging violations of the Fair Labor Standards Act. 

In a 2-0 decision, with Member Hayes (R) having recused himself, the NLRB held that participation in class or collective actions is protected concerted activity under the NLRA. Accordingly, the arbitration agreement violated the NLRA because it prohibited employees from participating in protected concerted activity. The NLRB further held that the arbitration agreement violated the NLRA because the agreement appeared to prohibit employees from filing unfair labor practice charges with the NLRB.  

As part of its decision, the NLRB also considered an important issue of first impression:  whether the prohibition on class/collective action waivers in arbitration agreements the NLRB found in the NLRA put the NLRA in conflict with the pro-arbitration FAA. The NLRB determined that no conflict existed, noting that the NLRA would also prohibit other contracts that barred employment class or collective actions, regardless of whether the contract involved arbitration. 

Finally, the NLRB addressed concerns that its decision conflicted with a recent pro-arbitration opinion from the United States Supreme Court. In AT&T Mobility v. Concepcion, 131 S. Ct. 1740, 1753 (2011) (pdf), the Supreme Court held that the FAA preempted a California law that prohibited class action waivers in consumer arbitration contracts. The NLRB attempted to distinguish AT&T Mobility by pointing out that the case involved a conflict between the FAA and state law, whereas the arbitration agreement at issue in D.R. Horton involved a potential conflict between two federal statutes, the FAA and the NLRA. 

The strength of the NLRB’s reasoning will almost certainly be tested on appeal. In the interim, labor professionals should review all individual, non-collectively bargained arbitration policies. In particular, labor professionals should consider:

• Allowing employees to participate in employment-related class or collective actions. According to the NLRB, an arbitration agreement can prohibit class or collective arbitration so long as employees were allowed to bring these claims in court. The NLRB chose not to address the opposite scenario:  whether an arbitration agreement could allow class or collective arbitration claims, but prohibit those claims in court. 

• Allowing employees to file unfair labor practice charges with the NLRB. Excluding such claims from the scope of an arbitration agreement improves the likelihood that the arbitration agreement will not run afoul of the NLRA. 

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By Nelson Cary and Ashley Manfull

Recent actions by the NLRB’s Acting General Counsel and administrative law judges (highlighted in prior posts on this blog) have caused great concern for labor professionals grappling with the inappropriate comments of employees posted on social media. The fear, based on these prior actions, is that disciplinary action will result in an unfair labor practice charge for interference with protected concerted activity. However, in its most recent Advice Memorandum (pdf), the NLRB’s Office of the General Counsel (Office) has affirmed that employee social media postings are not automatically protected by Section 7 of the NLRA and may be grounds for termination in appropriate circumstances.

In the Memorandum, the Office opined that an employer did not engage in an unfair labor practice by dismissing an employee who named his employer on his LinkedIn profile and used a vulgar, derogatory term for his job title.  The former employee claimed that the fake job title was only meant as a joke and had been on his LinkedIn page for over a year before his discharge. The employee alleged that the true reason for his termination was his recent discussions with coworkers regarding a successful employee wage and hour lawsuit at another company and whether the employer’s similar overtime policy may be unlawful. 

The Office determined that even though the discharge occurred in close proximity to the former employee’s protected discussions with his coworkers, there was no link between those discussions and his termination. Rather, the employer had only recently discovered the offensive LinkedIn posting when it reviewed employee posts as part of an assessment of problems with its own LinkedIn page. Upon observing his LinkedIn profile, the employer discharged the employee based on its communications usage policy, prohibiting obscene, defamatory, harassing and/or abusive language regarding the employer.

While the Office commented that the employer’s policy may be overbroad by including the word “harassing,” which could reasonably be construed to preclude protected conduct, it found no violation. The Office reasoned that the former employee’s comment on LinkedIn clearly was not protected activity. The “fake” job title was offensive on its face and had nothing to do with the former employee’s verbal conversations with coworkers regarding the company’s overtime policies.

It is important to note that the Memorandum is not a decision by the NLRB. Rather, it is an administrative pronouncement by the division of the NLRB responsible for deciding whether a violation occurred and, if so, initiating enforcement proceedings. Thus, until the NLRB rules on these issues, the law will continue to evolve. 

Labor professionals are well-advised to review employee disciplinary events arising from social media postings on a case-by-case basis. The Memorandum makes clear that all such postings are not automatically protected under Section 7.  It does, however, demonstrate the need to consult with qualified labor counsel when confronted with questions of protected concerted conduct.

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By Nelson Cary and Ashley Manfull

On September 28, 2011, NLRB Administrative Law Judge (ALJ) issued a decision regarding the Section 7 rights of employees who criticize their employers via electronic media. This decision comes approximately three weeks after the decision in Hispanics United of Buffalo, ALJ Case No. 3-CA-27872, where an ALJ ruled that five employees were unlawfully terminated based on a series of Facebook posts regarding their working conditions.

In Karl Knauz Motors, Inc. and Robert Becker, ALJ Case No. 13-CA-46452 (pdf), the ALJ ruled that a car dealership acted lawfully in terminating sales employee Robert Becker based on one of two Facebook posts. In his first post, Becker posted pictures and sarcastic commentary of a customer event at the Company’s BMW dealership launching its latest luxury vehicle. Becker was upset with the Company’s food selection for the launch, so he posted pictures of the food display and salesmen posing with the food, along with various negative comments about how the company “went all out” for such an important launch. Becker and several other salesmen had raised concerns about the food in a sales meeting before the launch, concerned that a cheap event could impact their commissions. 

In his second post, Becker posted pictures of an accident involving a Company vehicle at the Company’s next door Land Rover dealership. A customer’s minor son entered a running vehicle and caused it to run over another customer’s foot, travel down an embankment and land in a pond. Becker posted pictures of the distraught customer’s son and the wrecked vehicle, along with sarcastic comments about the incident.

The Company terminated Becker’s employment due to his inappropriate comments on Facebook. The Company asserted that while Becker’s comments about the food at the sales launch were inappropriate, his termination was based on his Facebook posting regarding the Land Rover accident because he was making light of an extremely serious situation. Becker filed a Complaint alleging he was terminated for engaging in protected, concerted activity.

The ALJ accepted the Company’s evidence that Becker was terminated solely for the Land Rover posting. The ALJ found that the posting did not constitute protected concerted activity because the incident had no connection to the terms and conditions of Becker’s employment and Becker never spoke to any other employees about the incident or posting.   

Interestingly, the ALJ did note that Becker’s first posting constituted protected, concerted activity. While Becker made an individual decision to post those comments, the posting was a “logical outgrowth” of the prior comments that the other salesmen made at the pre-launch sales meeting. The “mocking and sarcastic tone” of the post was not alone sufficient to rise to the level of disparagement which would deprive the activity of its protection.

Finally, and of particular note to the labor professional, four employee handbook policies were also challenged. The ALJ found that three of them were unlawful, including one that prohibited employees “from being disrespectful or from using language that damages the reputation of the Company” and another requiring “outside inquiries concerning employees” to be directed to the human resources department. The ALJ evaluated these policies and determined that these policies interfered with employees’ Section 7 rights. 

As issues surrounding employees’ use of Facebook and other electronic media continue to develop, practicing labor professionals should be cautious when terminating employees for conduct that might be considered protected, concerted activity. In addition, the ALJ’s ruling on the employee handbook policies is a good reminder to review such documents regularly to identify potential problems.

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By Nelson Cary and Ashley Manfull

On September 2, 2011, an NLRB Administrative Law Judge (ALJ) issued the first decision on the question of employees’ Facebook posts. The decision, applying a liberal interpretation of protected, concerted activity under the NLRA to the online activities of employees, comes on the heels of the Office of the General Counsel’s report on social media cases issued last month. 

In Hispanics United of Buffalo, Inc. and Carlos Ortiz, ALJ Case No. 3-CA-27872, the ALJ ruled that five employees of a non-profit organization were unlawfully terminated for engaging in protected, concerted activity based on a series of Facebook posts which were made outside the workplace during non-working hours. The facts of the case are summarized in a prior blog post.

In finding a violation, the ALJ found the employees’ Facebook discussion constituted protected, concerted activity under Section 7 of the NLRA. When the first employee enlisted the support of her fellow employees to respond to criticism regarding their job performance, she was engaged in concerted activity just as much as “ordinary group activity” that does not take place online.

Applying a very liberal interpretation of concerted activity, the ALJ ruled that it was irrelevant that the employees were not trying to change their working conditions and did not communicate their concerns to their employer. The ALJ held that it was sufficient that the employees were taking a first step towards group action to defend themselves from a coworker’s accusations which they “could reasonably believe” the coworker may communicate to management.

Ultimately, the ALJ concluded that by discharging the five employees, the employer prevented them from taking any further group action regarding their coworker’s criticisms. It was irrelevant that there was no express evidence that the employees even intended to take further action in response to the criticism. The ALJ ordered HUB to reinstate the five employees with full back pay.

Under the NLRB’s process, the ALJ’s decision is now subject to appeal to the full NLRB. Thus, it is possible that the NLRB might rule differently, or the case may be settled before the NLRB has an opportunity to issue an opinion that would provide firm guidance. Nonetheless, the ALJ’s opinion is one that could be followed by other ALJs confronted with similar questions.

Practicing labor professionals know that issues surrounding employee rights with respect to social media are gaining increased attention. This is an area of the law that will continue to develop as more complex issues arise. Before addressing any issue with an employee regarding the use of social media during non-working hours, labor relations professionals should keep these recent developments in mind and thoroughly analyze the possibility of protected, concerted activity challenges to employee discipline.

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Now that social media is more or less ubiquitious, labor professionals must be keenly aware of the complex issues that spring from the intersection of employee relations and social media. As readers of this blog know, this is an area of the law that has gained a significant amount of attention over the last few months. As a nod to this development, and to summarize the dozen or so cases where the Acting General Counsel (AGC) has confronted social media issues, the AGC issued a report last Thursday to summarize the positions the AGC has taken.

The report (pdf) describes the facts of cases where the AGC has issued a complaint against an employer for an alleged violation of the NLRA. The report also describes cases where the AGC declined to issue a complaint. The conduct that has been the target of the AGC's enforcement attention includes both employment actions against employees (terminations, for example) who have posted certain content on a social media platform as well as the employer's policy language that regulates such employee conduct.

The report is quite lengthy, running in excess of 20 single-spaced pages.  For labor professionals with the time, and a particular interest in this area of the law, reading the report may well be worth the investment. For everyone else, some of the employer conduct the AGC found to violate the law is summarized below:

·         Terminating an employee who, among other things, referred to the owner of the company as “such an asshole.”

·         Threatening to sue that same employee.

·         Terminating an employee who, among other things, called her supervisor a “scumbag.”

·         Terminating an employee for posting pictures of, and sarcastic comments about, the food and drink served by a luxury car dealership during the introduction of a new car model.

·         Maintaining a policy that prohibited “rude and discourteous behavior.”

·         Prohibiting “inappropriate discussions” between employees about the employer.

·         Prohibiting employees from using the employer’s name, address, and other information in their personal profiles in social media sites.

On the other hand, some examples of employer conduct the AGC found not to violate the NLRA included:

·         Terminating a bartender who posted a comment on Facebook about the employer’s tipping policy in response to an inquiry from a nonemployee. This employee also referred to customers as “rednecks” and indicated he hoped they choke on glass as they drove home drunk.

·         Terminating an employee of a medical transportation company for posting comments on her U.S. Senator’s Facebook “wall” that disparaged the services her employer provided and disclosing information about a particular medical call to which the employer had responded.

·         Disciplining a retail store employee who complained about “tyranny” from his store management, used a derogatory term to describe his assistant manager, and complained about being “chewed out” for mispriced or misplaced merchandise.

·         Maintaining a policy that prohibited employees from pressuring their coworkers to “friend” or otherwise connect with them via social media.

Labor relations professionals should keep the following points in mind in light of the AGC’s report:

·         First, remember that the AGC is responsible for enforcing the statute. The report summarizes conduct that the AGC believes violates the law. Not until the complaints make their way to the NLRB, however, will we know whether the NLRB will agree that there is a legal violation.

·         Second, whether a violation exists is a very fact intensive question. Each employment action and each policy must be examined in context. The difference between legal and illegal employer conduct in this area can be difficult to identify.

·         Third, what an employer’s policy says and how it could be read by a reasonable employee is critical. Care should be taken when drafting employment policies to avoid overly broad or ambiguous words and phrases.

·         Finally, all of the AGC’s actions here rest upon the well-established right of employees to engage in protected, concerted activity. As the social media cases demonstrate, this rule can impact employee relations issues when an employer least expects it.

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The NLRB, this time through its regional office in Buffalo, New York, has issued another complaint (pdf) against an employer in a case involving Facebook postings.  The employer alleged to have violated the NLRA is Hispanics United of Buffalo, Inc., a non-profit organization. 

According to the NLRB, employee "A" posted allegations of employee "B" to employee A's Facebook page.  The comments from employee B alleged that the employer did not do enough to help its clients.  Employee A's post then generated additional posts from other employees, who defended their job performance and complained instead about workload and staffing issues.  Hispanics United, upon learning of the posts, discharged employee A and the other employees (five employees in all) who responded to that post.  The employer appears to have reasoned that employee A's comments, and those of the other employees, constituted "harassment" of employee B.

As with the complaint previously issued by the Hartford regional office (covered last November on this blog), it is important to note that the complaint against Hispanics United is only an assertion that the employer violated the NLRA.  It doesn't constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, it is a reminder for the labor professional of some important points: 

• Protected, concerted activity.  As this blog previously noted, "concerted activity" can be alleged to occur in a number of different contexts.  In the Hartford case, the concerted activity was complaining about one's immediate supervisor.  In this case, the concerted activity was the discussion of working conditions, specifically those dealing with workload.  Employers need to be vigilant in watching for disciplinary actions that could implicate protected, concerted activity.
• "Harassment" is not necessarily a defense.  Many employers maintain policies that are designed to prevent harassment in the workplace.  The Hispanics United complaint demonstrates that sometimes such a policy may not be a permissible basis on which to discipline an employee.  
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  The Buffalo complaint reinforces the observation this blog made when the Hartford complaint was announced:  lest there be any doubt, the regional offices will apply these "old" laws to new forms of employee communication just as aggressively as they did in the days of the water cooler conversation. 

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One of the key assets of any company is its customer base.  Businesses spend a lot of money to build that base and the loyalty of that base to the company's goods or services.  Not surprisingly, businesses care about what their customers think about the company, and that includes the employees who deliver the goods or services the company provides.

Late last week, however, the NLRB ruled that those considerations take a back seat to employees' desires to speak out about a dispute with their employer.  In AT&T Connecticut, 356 N.L.R.B. No. 118 (2011), the NLRB ruled that an employer violated the law when it prohibited its service technicians, when visiting customer's homes, from wearing a t-shirt critical of the company. 

The NLRB described the shirt as a plain white t-shirt with "Inmate #" in "relatively small" letters the upper left front of the shirt.  On the back of the shirt, two sets of vertical stripes appeared with "Prisoner of AT$T" in between the stripes.  AT&T, concerned about the reaction of its customers to these shirts, prohibited service technicians from wearing them.

The NLRB found that the shirts were not reasonably likely to cause fear or alarm among the employer's customers.  The print was relatively small and the reference to "prisoner" was only half the size of the reference to "AT$T."  Moreover, the majority noted that the technicians appeared at customers' homes in response to appointments the customers made; called the customer before coming to the home; carried identification cards on their belts or wore them around their necks; and would have an AT&T truck "parked[ed] nearby."

In a dissenting opinion, Member Hayes came to a different conclusion.  He found that the employer's restriction was appropriate under the circumstances.  Customers would first see "Inmate #" on the t-shirts upon opening their doors.  The other print was on the back of the t-shirts.  There was no reference to a labor dispute anywhere on the shirt.  Finally, the employer banned the t-shirts at a time when, in the state where they were being worn, there had been a home invasion by two convicted felons resulting in the deaths of a mother and her two children.  Under these circumstances, Member Hayes believed the employer's prohibition on the t-shirts was permissible.

For the labor professional, the opinion serves as a reminder of the scope of an employee's rights under the NLRA.  Employees wearing union insignia will often be protected, and the employer will often find it difficult to impose limitations on those rights.

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Employers are often faced with employees who complain about issues with their employment.  When employees engage in "protected, concerted activity," however, the NLRA prohibits employers from taking disciplinary action against them.  A recent case from the NLRB is a good reminder of this rule.  In Wyndham Resort Development Corp., 356 N.L.R.B. No. 104 (March 2, 2011), the NLRB held, in a 2-1 decision, that an employer unlawfully disciplined an employee for engaging in protected, concerted activity.  The circumstances of the case are particularly noteworthy for the labor relations professional.

The employer implemented a rule for salesmen requiring that shirts be tucked in.  An employee, learning of this policy upon returning from a vacation, confronted management about how the rule was announced in front of a group of his co-workers.  During this confrontation, another employee expressed concerns about the substance of the rule, objecting to the requirement that he tuck in his shirt.  That employee indicated, among other things, that he "didn't sign up for this crap".  Neither of these employees had talked to the other in advance of their respective decisions to raise this complaint with management.

Ultimately, a manager issued a written warning to the first employee.  The manager noted the employee's argumentative and aggravated tone during the confrontation.  The manager also noted in the warning that the employee "incited" another employee to join in.

The NLRB majority held that the employer's written warning was unlawful.  The employee was engaged in concerted activity because he made references to "we" and "us" when opposing the employer's policy.  The employee also knew that some of his coworkers enjoyed wearing shirts untucked, and thus he could "reasonably expect" those employees to disagree with the rule.  The fact that another employee joined in also demonstrated concerted activity.  Indeed, given the employer's reference to this fact in the written warning, the NLRB concluded that the employer disciplined the employee precisely because he chose a group forum that was likely to induce group action. 

The NLRB majority found it irrelevant that the employees had not agreed or consulted one another in advance of the employee meeting to protest the work rule together.  It was enough, said the NLRB, that the employee was attempting to initiate or induce group action.

Member Hayes disagreed with the majority opinion.  He noted that the employee acted in a group setting, but that there was no evidence that he did so on behalf of coworkers or to induce group action.  Member Hayes criticized the majority for essentially holding that an employee who voices a complaint in a group setting is thereby engaged in concerted activity.

For the labor professional, Wyndham Resort is significant for at least two reasons:

• It demonstrates the breadth of protection the current NLRB will afford employees engaged in "protected, concerted activity."
• It reminds employers of the need for effective mechanisms (e.g., "open door" policies) to receive and address employee complaints. 

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Last November, the NLRB's regional office in Hartford, Connecticut, issued a complaint against an employer that had disciplined an employee for something she posted on her Facebook page.  The unfair labor practice complaint was previously reported on this blog.

Yesterday, the NLRB announced that the employer had agreed to settle this charge.  As it relates to the portion of the complaint dealing with the employer's policies, the employer agreed (pdf) to revise its rules of conduct to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.  The employer promised not to discipline employees for engaging in that conduct. 

The employer came to a separate, private agreement with the discharged employee.  Thus, it is unknown what terms were agreed upon to resolve that part of the complaint.

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Employee use of social media causes labor professionals problems with increasing frequency.  Facebook pages, Twitter feeds, and similar outlets seem to provide a never ending stream of possible employee relations scenarios.  In an effort to deal with these issues, many businesses have adopted policies governing employee use of these internet resources.  In addition to addressing the employee relations issues, employer's see these policies as a way to protect their reputation and/or brand.

As employers grapple with these issues, however, courts and agencies do as well.  The NLRB is no different.  A good example was made public last night from the NLRB regional office in Hartford, Connecticut.  The regional offices are responsible for prosecuting alleged violations of the NLRA.  The Hartford office announced that it has issued an unfair labor practice (ULP) complaint (pdf) -- an allegation that the employer violated the NLRA -- against an employer who disciplined an employee for comments on her Facebook page.

The complaint alleges that a supervisor asked an employee to meet to discuss what the employee thought could lead to discipline against her.  The employee requested union representation, which was denied.  Later that same day, the employee posted critical comments about her supervisor on the employee's Facebook page.

The complaint further alleges that the employer fired the employee for her comments on the Facebook page.  The employer's blogging and internet posting policy prohibited employees from making disparaging comments about the employer and supervisors.  The employer's policies also prohibited "rude or discourteous" treatment of a coworker.

It is important to note that the Hartford office's complaint is merely that:  an assertion that the employer's conduct was unlawful.  It doesn't constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, the complaint serves as an important reminder of at least three points:

• Protected, concerted activity.  The complaint asserts that the employee's comment on the Facebook page was "concerted activity"  under the NLRA.  Employers are not permitted to discipline employees for engaging in protected, concerted activity.  This case reminds all employers that this activity can be alleged to occur in a number of different contexts.
• What your policies say matter.  The complaint attacks not only the employer's discipline, but also the policy itself.  Employer policies can be phrased in a fashion that is overly broad under the NLRA, thus violating federal law.
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  In the event there was any doubt, this complaint suggests that the regional offices will apply those laws to new forms of employee communication just as aggressively as they have in the days of the water cooler conversation. 

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