Rethink social media policies in light of NLRB complaint, lawyers say

The National Labor Relations Board says online postings from employees about improving workplace conditions are permitted.

By — Posted Nov. 29, 2010

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If an employee posts something really negative about you or your practice on Facebook, your first thought might be to change the employee's job status on the social networking site to unemployed.

But after a recent complaint was filed by the National Labor Relations Board against a company that did just that, lawyers are advising their clients -- including physician practices -- not to be so quick to sign that pink slip, particularly if the social media post is about improving workplace conditions. Attorneys are advising practices to re-examine their social media policies as a result of the complaint -- or write a policy to make sure they are protected.

The advice stems from a complaint filed in November by the NLRB against American Medical Response of Connecticut, an ambulance company. The case involved an employee who was fired after mocking and criticizing her supervisor on Facebook. The comments were made after the supervisor would not allow a union representative to help the employee prepare a response to a customer's complaint.

The labor board said the comments about the supervisor were allowed because they drew responses from co-workers and were considered "concerted activities," which are permitted and protected under the law. The National Labor Relations Act, which established the NLRB, said employee "protected concerted activities" include two or more employees addressing their employer about improving their working conditions and pay; an employee speaking to his or her employer on behalf of himself or herself and one or more co-workers about improving workplace conditions; and two or more employees discussing pay and other work-related issues with each other.

The Connecticut case will go before an administrative law judge in January.

The board's position seemed to break from a memorandum issued in 2009 by the NLRB's division of advice, which cited a 2004 decision that Sears, Roebuck & Co. was allowed to implement policy prohibiting employees from posting comments about the company online.

Philip S. Mortensen, a partner with the New York law firm Barton Barton & Plotkin, said the apparent shift of opinion could be the result of a political change of arms at the NLRB. President Obama has appointed two Democrats to the board, giving Democrats, who tend to be pro-employee, a 3-1 majority.

Deciding what is protected speech

On Nov. 9, the NLRB, which oversees protections for almost all nonunion and union private workers, including those in physician practices and hospitals, issued advice on how employers and employees could help draw the line between what is protected and what is not. On its Facebook page, the NLRB said a four-point test can be applied: the place of the discussion, the subject of the discussion, the nature of the employee's outburst, and whether the outburst was in any way provoked by an employer's unfair labor practices.

National labor attorneys said the complaint makes clear that practices and other employers have the right to tell employees they cannot say things online that would harm the business's reputation.

"You're not really allowed just to disparage and sabotage your employer," said Damon Dunn, an attorney with Funkhouser Vegosen Liebman & Dunn in Chicago. "There has to be a purpose for the betterment of the employees' working conditions. If you are a lone wolf, you are not protected."

Michael McAuliffe Miller, an attorney at Pittsburgh-based Eckert Seamans, said he's not sure if this case will stand up to scrutiny by an administrative law judge. But it signals to practices and other employers that if they are considering terminating an employee for something they post online, "you need to do a lot more digging."

Miller said the line between right and wrong can't usually be determined by taking comments posted online at face value.

Susan Keating Anderson, an attorney with Walter & Haverfield in Cleveland, said a lot of questions will remain unanswered until at least January.

In the meantime, there are things employers and employees alike can learn from the case.

For physician practices, it's another reason they need social media policy, Anderson said. If they already have a policy, it deserves a second look to make sure it is not too broad. A blanket statement saying employees are never allowed to talk about the practice in any way is a potential liability, attorneys said. The law allows employees to talk openly to other employees about their employment and working conditions, so a specific policy is more appropriate, Anderson said.

Practices can specify in their policies that employees are prohibited from saying things -- online or otherwise -- that would harm the reputation of the company, hinder its ability to do business, or expose trade secrets or proprietary information. For a medical group, Anderson said, that policy should also prohibit employees from disclosing patient information and violating the Health Insurance Portability and Accountability Act.

Dunn said the case -- and subsequent policies that result from it -- won't really be about Facebook and what is posted there.

"It's really about what is being said and what's the purpose."

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