Employer Settles Facebook Firing Suit with NLRB

The National Labor Relations Board (NLRB) has announced that settlement has been reached in the closely watched Facebook firing suit brought by the agency.

We have previously reported that the NLRB filed an administrative complaint against a Connecticut ambulance company alleging that the company violated an employee’s federal rights by firing her for criticizing a manager on Facebook. In the complaint, the NLRB took the position that union and non-union employees have a right to criticize their employers, management or working conditions, and cannot be punished for engaging in such protected activity. The NLRB also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. The complaint asserted that an employee’s right to criticize the employer and management is an extension of the federal right to discuss unionization and form unions.

Under the terms of the settlement approved by the NLRB’s Regional Director Jonathan Kreisberg, the company agreed to revise its policies to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work. The company also committed not to discipline or discharge employees for engaging in such discussions. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The NLRB hopes that the action delivers a broader message to employers. According to AP, Mr. Kreisberg stated that the settlement “sends a message about what the NLRB views the law to be.” Mr. Kreisberg viewed as most significant the employer’s agreement to revise its rules to relax the restrictions on the employees’ right to discuss their work conditions with others and with their fellow employees. Mr. Kreisberg added that the NLRB is looking at a growing number of complaints that explore the limits of corporate Internet policies.

The NLRB suit and the settlement do not mean that the right to talk about employers on the Internet or outside of work is absolute. For example, if an employee lashes out against a supervisor, but is not communicating with employees in doing so, the activity may not be protected. In addition, making false, defamatory statements about the employer or disparaging remarks unrelated to work (for example, about a supervisor's family or personal life) is likely not protected by federal law.

The action item for employers is to carefully review and, when appropriate, revise their social media and employee conduct policies to ensure that the policies balance business needs and employees' rights consistently with federal law and NLRB guidance.