The National Labor Relations Board has
announced that its Hartford Regional Office issued a complaint against American
Medical Response of Connecticut, Inc., alleging that this employer unlawfully
terminated an employee for posting negative comments about her supervisor on
her Facebook page. After Dawnmarie Souza made the posting, several of her
co-workers posted responses supportive of her posting and then Ms. Souza posted
additional negative comments about her supervisor. The employer first suspended
and then terminated Ms. Souza for violating its internet posting policies.
NLRB Complaint alleges that Ms. Souza’s Facebook posts were “protected
concerted activity” within the meaning of the NLRA and that the employer’s
internet posting policies contained unlawful provisions, including one that
prohibited employees from making disparaging remarks about their supervisors.
The NLRB concluded that such provisions constitute interference with an
employee’s exercise of his or her right to engage in protected concerted
development is problematic. First, the decision appears to contravene the
long-standing principle that an employee such as Ms. Souza, whose termination
was based on her activity solely on behalf of herself, does not engage in
“concerted” activity where the activity was not “engaged in with or on the
authority of other employees….” Prill v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir.
1987). Second, Ms. Souza’s conduct, even if “concerted,” does not appear to
qualify as “protected.” “[Such] …expression of criticism about management . . .
is not a condition of employment that employees have a protected right to seek
to improve.” New River Industries, Inc. v. NLRB, 945 F.2d 1290, 1294-95 (4th
Cir. 1991). See also Carleton College v. NLRB, 2390 F.3d 1075, 1081 (8th Cir.
2000). While work-related criticism of or complaints about a supervisor
arguably are protected, defamatory or highly personal comments about a
supervisor outside of the workplace which appear on the internet for the whole
world to see surely are not protected. See, e.g., St. Luke's
Episcopal-Presbyterian Hosps. v. NLRB, 268 F.3d 575, 580 (8th Cir. 2001)
(quoting Montefiore Hosp. & Med. Ctr. v. N.L.R.B., 621 F.2d 510, 517 (2d Cir.
NLRB is testing the limits of Board law as to new forms of media. This affects
all employers, whether unionized or not. It also creates uncertainty in the
emerging area of workplace social media policies.