In early October, I wrote about the importance of having a corporate policy relating to social networking in the workplace. A recent case filed by the National Labor Relations Board (NLRB) affirms the need for such a policy, but also reveals how difficult it can be to formulate a defensible policy on social networking that strikes the right balance between protecting the company and protecting the rights of employees.
In late October, the NLRB sued American Medical Response, Inc. (AMR), a private company that provides medical transportation services, alleging that the company's policy with respect to social networking violates Section 7 of the National Labor Relations Act (NLRA), which guarantees every employee the right to unionize and to engage in concerted activities for the purpose of, among other things, collective bargaining and other mutual protection.
The facts of the complaint are relatively simple: AMR denied the request of one of its employees for union representation, the employee then posted remarks on Facebook about the supervisor involved in the decision, several other AMR employees responded to the comment with disparaging comments of their own (causing the employee to post additional comments) and AMR fired the employee for violating AMR's social networking policy. That policy provided that "[e]mployees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors."
The NLRB conducted an investigation, and determined that the employee's postings were "protected concerted activity" and that AMR's policy "contained unlawful provisions" that prohibited employees from making disparaging work-related remarks about supervisors and other employees. The NLRB accused AMR of "interfering with, restraining and coercing employees in the exercise of their rights guaranteed" by the NLRA, including the right to complain about workplace conditions. A hearing before an administrative law judge is scheduled for January, during which the judge will consider whether the AMR policies reasonably tend to chill the ability of coworkers to engage in protected communications.
This case highlights some of the thorny issues that employers face when they attempt to regulate employee behavior, including employees' online activities. The NLRB's acting general counsel has stated that "[t]his is a fairly straightforward case under the National Labor Relations Act - whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have the right to do that." That comment raises two questions: Is there no meaningful difference between online communications and water-cooler talk? And what is the precise scope of the NLRA's protections for work-related online communications?
On the first question, in-house counsel may believe - understandably - that offline employee communications within the workplace have a much different impact than employee comments posted on social networking sites. Communications on social networking websites are often public, permanent, unfiltered, and, sometimes, anonymous or disguised. Suppose an employee accuses an employer and a supervisor of particularly egregious conduct. If that accusation came in the form of an offline communication in the workplace, its impact might depend in large part on other employees' experiences. Employees might properly dismiss an unfounded allegation as the hyperbolic grousing of a fellow employee. Conversely, if the employees saw truth in the complaint, they might band together and confront the employer, who would have an opportunity to respond and, if necessary, correct the problem. By contrast, a baseless online criticism may be wrongfully credited and reach a public audience before the employer is even aware that the criticism exists. That may cause significant, unwarranted damage to the company's reputation, and to the reputations of other employees who were the targets of the criticism. And because the forum has shifted to the Internet, the company may have no meaningful way of responding to those charges. Thus, there may be good reason to distinguish between online and offline communications. Online communications may pose a greater threat to a company's reputation, and offline communications may be more likely to lead to productive employer-employee dialogue.
That is not to say that the NLRA does not, or should not, offer protection for online employee communications. But that protection should account for the unique characteristics of Internet speech. Unfortunately, in-house counsel seeking to formulate policies on these issues are operating within an evolving area of the law that is still in the process of catching up with the pace of technology. According to the acting general counsel of the NLRB, "[t]his is the first complaint we've issued over comments on Facebook, but I have no doubt that we will be seeing more. We have to develop policies as we go in this fast-changing environment." Hopefully, those policies will protect both employers' and employees' interests by carefully considering not only the message, but also the medium.