Partner Richard Betheil Quoted by SHRM in Article About NLRB Challenge of Facebook Firing
Partner Richard Betheil, a member of Pryor Cashman’s Labor & Employment Group, was quoted by SHRM in its November 8, 2010 article “Facebook Firing Challenged By NLRB.”
On November 2, 2010, the National Labor Relations Board’s (NLRB) Hartford, Conn., office announced that it had issued a complaint against an ambulance service which illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint also maintains that American Medical Response of Connecticut Inc. unlawfully denied union representation to the employee during an investigatory interview and enforced an overly broad blogging and Internet posting policy.
According to the NLRB, the employee’s Facebook postings were protected concerted activity. The NLRB maintained that the company’s blogging and Internet posting policy included unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission. The provisions constituted interference with employees in the exercise of their right to engage in protected concerted activity, the NLRB asserted.
Betheil believes that the complaint might illustrate the direction that the NLRB under a Democratic administration is headed. He compared the employee’s comments on Facebook to a conversation among employees in a break room, saying that labor law may impose some restrictions on disciplining employees for such conversations.
An employee’s Facebook conversations are particularly problematic because they arguably encompass communications with co-workers who have friended the employee and are not just communications more generally. Internet policies might have to distinguish Facebook and make clear that employers are not saying that employees can’t communicate with co-workers, he added.
Employers have to balance legitimate concerns about the workplace and employees not being subject to ridicule against whatever legal rights employees have to communicate, Betheil said, adding that employees do not have the right to make false statements that defame a supervisor or co-worker.
Even in the absence of a union, collective griping might rise to the level of protected concerted activity, but the NLRB rarely litigates cases where the workplace is not unionized, Betheil remarked. He said he would draft Internet use policies differently for unionized workforces than nonunionized workforces.
With social networking, employers often know about communications that they previously would not know. Betheil said there aren’t clear answers about how to amend policies to account for the new application of old legal issues to social networking sites. He said employers will be finding their way through uncertain legal terrain for a while.
Betheil noted that the case is in its earliest stages. It still has to go to trial before an administrative law judge and then may be appealed by either party to the NLRB. An NLRB decision then may be appealed to the courts, he added. A hearing on the case is scheduled for Jan. 25, 2011.
To read the article, please click here.
