The National Labor Relations Board’s involvement with social media disciplinary issues first made headlines in October 2010 when the NLRB’s Connecticut regional office filed a complaint against the American Medical Response of Connecticut, alleging the company illegally fired an employee for posting and responding to negative statements about her supervisor on Facebook. The complaint also alleged that the company maintained an overly broad social media policy. The NLRB and AMR settled the case in February 2011 after AMR agreed to revise its social media policy to “ensure that [AMR did] not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.” AMR also agreed that it “would not discipline or discharge employees for engaging in such discussions.” Additional details involving the employee’s discharge were resolved separately through a private confidential agreement. See Am. Med. Response of Conn., NLRB Case 34-CA-012576.
The National Labor Relations Act, under Section 7, provides that employees, both unionized and non-unionized, have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” including discussions among employees regarding wages and working conditions. It is clear that Section 7 protects traditional means of communication between employees, such as face-to-face communication, as well as communication over the Internet and on social media sites. Unlike traditional means of communication, when employees use social media they reach more people and it is more difficult for employers to control. The NLRB’s recent investigations into complaints filed, starting with the AMR matter, provide insight into how the NLRB would rule if presented with a social media issue involving employee discipline. Since October 2010, following the NLRB’s issuance of the AMR complaint, the NLRB has investigated and/or issued several additional “Facebook/Twitter firing” complaints. Only recently, on Sept. 2, 2011, did the NLRB finally issue a ruling on a “Facebook” case, officially holding in Hispanics United of Buffalo, Inc. v. Carlos Ortiz that off-hours complaints by employees about their working conditions on Facebook were protected by the NLRA.
