The New York Times recently reported that the National Labor Relations Board (NLRB) has filed a complaint against an employer for firing an employee over a Facebook post.
According to the article, the employer, American Medical Response of Connecticut, fired one of their emergency medical technicians after she mocked her supervisor in a Facebook post, apparently in response to an argument she had had with her supervisor earlier that day. The post garnered supportive comments and further criticism of the supervisor from fellow employees. The employer claimed that the employee had violated a company policy prohibiting employees from “depicting the company in any way on Facebook or other social media sites.” The NLRB contends that such a policy is overly broad and violates the National Labor Relation’s Act prohibition against disciplining employees for discussing working conditions or unionization amongst themselves. The NLRB’s position is that the employee’s post is considered concerted activity, which is protected under the NLRA, and thus cannot justify disciplinary action against the employee.
In the article, a former member of the NLRB opined that whether a Facebook post criticizing a supervisor or complaining about working conditions would constitute protected activity might depend on whether fellow employees respond and become involved in the online conversation or communication (thus satisfying the “concerted” element of “concerted activity”). The former member suggested that if the post does not “communicate with co-workers” (for instance, if no other employees commented or became involved in the conversation), the post may not be protected.
Such an interpretation raises questions about how the Board and the courts will go about reconciling the communications that occur among employees on Facebook with more traditional notions of concerted activity under the NLRA (i.e. employees discussing working conditions at the water cooler or in the employee cafeteria). As any Facebook user knows, one has little control over whether another user will respond to or comment on a Facebook post. Can the modern definition of concerted activity under the NLRA and its resulting protections really hinge on the arbitrary and random impulses of others to respond to a Facebook post? After all, how is a Facebook post criticizing a supervisor to which no one actually responds but which some people may privately express approval of significantly different than an employee making the same statement to a group of employees who may nod in agreement in a hallway at the office? It will be interesting to see how the Board and the courts refine their interpretation of the term “concerted activity” as the use of new modes of communication such as Facebook and Twitter proliferate among workers. Such refinements may also mean changes in employer policies addressing the use and content of social networking sites both inside and outside of the workplace, which may give rise to First Amendment issues.
An administrative law judge is set to begin hearing the case on January 25, 2011.