As many employers and employment attorneys are aware, the area of “social media” is a hot topic. Indeed, the latest front in the area of social media has been employer efforts to obtain access to applicants’ and employees’ Facebook profiles by asking for user names and passwords. This has prompted a wave of proposed legislation banning such practices, the first of which was recently passed in Maryland and with other states likely to follow. The National Labor Relations Board has also taken an active interest in this area. In particular, the board has focused on employer policies and rules which seek to regulate and limit their employees’ use of social media.
In one early case, American Medical Response of Connecticut, 34-CA-12576 (NLRB Region 34), the NLRB issued a complaint against a Connecticut ambulance service company that terminated an employee for posting negative comments about her employer and supervisor on Facebook. The NLRB alleged that AMR violated §7 of the National Labor Relations Act because the employee’s comments constituted “protected activity” under the act. Of note, the complaint also took issue with aspects of the employer’s social media policy, including restrictions on employees’ ability to post pictures of themselves depicting the company in any way and restrictions on employee comments about the company, supervisors, co-workers or competitors. Although the case settled, as part of the settlement, the employer agreed to revise what the NLRB termed its “overly broad rules” so as to “ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions.”
