LEGAL VIEW: What you can and can't say about your boss on Facebook

By Christina Thacker The Daily Record Newswire Employers often want to know the limits of what employees can and cannot say about the company, their supervisors, and their co-workers in social media posts. Employers also want to know what they can and can't do in response to postings they don't like. One thing employers can do is establish a social media policy to communicate expectations to employees. A recent settlement involved an employer that fired an employee who made a disparaging comment about her supervisor on a Facebook post. The case provides guidance in what to consider when creating and enforcing social networking or social media policies. On Feb. 8, the National Labor Relations Board and the employer, American Medical Response of Connecticut Inc., an ambulance company, were scheduled to argue their case before an administrative law judge. The parties, however, reached a settlement. The NLRB enforces a federal law, the National Labor Relations Act, which protects employees' rights to engage in "concerted activities," which include those for the purpose of collective bargaining or other mutual aid or protection. The NLRA, however, does not apply only to unionized workplaces. It applies to and protects all employees who discuss wages, hours and working conditions with co-workers -- regardless of whether a union exists, is being contemplated, or has not been contemplated. This could include discussions on Facebook. The law would not, however, cover a single employee making derogatory or disparaging comments about a particular supervisor alone -- without any evidence that the employee is acting for the mutual aid of other employees, discussing the issue with co-workers, or expressing discontent about anything other than his or her own job. In the AMR case, the NLRB argued that the employee's post of disparaging comments about her supervisor on her Facebook page was a concerted activity protected under the NLRA. The NLRB alleged that AMR's actions were in retaliation for the employee's comments and that AMR was trying to discourage other employees from making similar negative comments. As part of the complaint, the NLRB also took aim at the language in the employer's social media policies, asserting that they were unlawful because they prohibited employees from engaging in concerted activities through social media. In short, the NLRB alleged that the employer interfered with, restrained and coerced employees' exercise of rights under the NLRA. The AMR case arose in the context of a unionized workforce and started when the employer denied the employee's request for a union representative during an investigatory interview. In response to AMR's denial for a union representative to be present at the interview, the employee promptly went home and made disparaging comments about her supervisor on her Facebook page. Other employees joined in with their own postings about the supervisor. Although the context of any employee issue is important, that fact does not limit the concern to only unionized workplaces. This case should be a reminder to all employers to review their policies related to Internet usage, social media and social networking usage, codes of conduct, and anything else that might discourage employees from discussing working conditions or engaging in activities for their mutual aid and protection. Social media is relatively new, and the law continues to develop based on cases filed by employees and by the NLRB. Remember that if employers interfere with the rights of their employees to engage in protected concerted activity, a union does not need to be in place for the law to be violated. And remember that employer policies, even if no employee has been disciplined, may violate the NLRA. Therefore, employers should be careful when creating, applying and enforcing policies about employee blogging and Internet posts -- there may be other policies that adequately protect the company from employee misconduct. If employer policies specifically address employees' use of social media, then employers should make sure that the policies address legitimate business concerns, are evenhandedly applied and do not interfere with employees' protected concerted activity (such as complaints about wages, working conditions and supervisors). One way for employers to stay in compliance with the NLRA and retain discretion to discipline employees is to include language that informs employees that disparaging comments about the company or anyone who works for or with the company may be deemed harassment and violate the company's policies, depending on the circumstances. Another mechanism to improve employee communication and relationships is to emphasize and remind employees of the company's approach to resolving conflicts, whether through a formal complaint procedure or an open-door policy. Finally, employers may also want to remind employees that they may be held legally responsible for the content of their personal postings, which could, for example, result in personal liability for defamatory comments. Christina Thacker is an attorney with Barran Liebman LLP. She focuses on employment litigation and advice. Contact her at 503-276-2199 or cthacker@barran.com. Published: Tue, Mar 1, 2011