On October 27, 2010, the Hartford Regional Office of the National Labor Relations Board ("NLRB") issued a complaint against American Response of Connecticut, Inc. ("AMR"), alleging that the company unlawfully terminated an employee who posted negative remarks about her supervisor on a popular social networking site, Facebook. The NLRB has also alleged that AMR maintained and enforced an overly broad social networking policy that violated the employee's rights under the National Labor Relations Act ("NLRA").
Dawnmarie Souza, an employee of AMR, was asked to provide a written response to a customer complaint about her performance. Souza allegedly requested union representation in connection with the preparation of her response. The company denied her request. Souza later posted negative comments about her supervisor on her Facebook page from her home computer. An article in The New York Times states that Souza wrote, "love how the company allows a 17 to become a supervisor." The article explained that a "17" is AMR's code for a psychiatric patient. Several of Souza's co-workers wrote supportive comments about Souza's posting, which led her to post more disparaging remarks about the supervisor. Less than one month later, AMR discharged Souza for "multiple serious issues."
Social Networking as Protected, Concerted Activity
The NLRB has taken the position that an employee's criticism of a supervisor on a social networking website may constitute "protected concerted activity" under the NLRA. The Acting General Counsel of the NLRB, Lafe Solomon, was quoted in The New York Times as stating, "This is a fairly straightforward case under the National Labor Relations Act - whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
The NLRB's Change of Position on Social Networking Policies
In this case, the NLRB has also alleged that AMR's social networking policy contained unlawful provisions, including prohibitions against employees making disparaging remarks about the company or its supervisors and depicting the company in any way over the Internet without company permission. The NLRB has stated that these provisions "constitute interference with employees in the exercise of their right to engage in protected concerted activity." It should be noted that Section 7 of the NLRA, which protects employees' right to engage in "concerted activity," applies to all workplaces, whether or not they are currently unionized.
The NLRB's position in this case appears to contradict prior advice that the agency gave regarding social networking policies. In 2009, the NLRB's Division of Advice issued an advisory memorandum stating that a social networking policy similar to AMR's was permissible under the NLRA. That policy also prohibited employees from disparaging the company or its officers and leaders.
A Good Time to Review Social Networking Policies
Although this case is just commencing, it clearly demonstrates the NLRB's current pro-labor approach and its new interest in issues related to social networking. Employers should exercise caution before taking an adverse employment action based on an employee's work-related comments on a social networking site. In addition, employers should review their current social networking policies to ensure compliance with the NLRA and other labor laws. For more information about drafting or revising a social networking policy, contact one of the Day Pitney LLP labor and employment attorneys.
Patrick McCarthy and Christopher Stracco are scheduled to speak on Friday, February 10, at the New Jersey Institute of Continuing Legal Education's Annual 2017 Redevelopment Law Institute at the Renaissance Woodbridge Hotel in Iselin, New Jersey.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
On May 13, Francine Esposito will give an Employment Law Update presentation to the HR Committee of the NJ Bankers Association. She will discuss the latest developments in employment law, including but not limited to paid sick leave requirements, EEOC initiatives, recent case law and pending legislation affecting employers.
On April 13, Day Pitney will hold a CLE that will cover two topics at Quest Diagnostics Incorporated, at 3 Giralda Farms in Madison, New Jersey. Benjamin E. Haglund, John W. Cerreta, Thomas A. Zalewski and Sylvia–Rebecca Gutierrez will teach a course on Contract & Tort Law Update for the Health Care Practitioner. The course will cover contract and tort issues for health care practitioners with special emphasis on genetic testing in tort litigation and potential pitfalls regarding provisions contained in contracts with hospitals, health plans, and suppliers. Theresa Kelly and Rachel Gonzalez will also teach a course on Employment Law, which will cover employment law issues with special emphasis on recent National Labor Relations Board activities and the Family and Medical Leave Act.
Rachel Gonzalez was mentioned in an article, "Unions set to begin voting on NJ Transit rail contract," in NJ.com. Gonzalez provided an explanation of the approval process concerning union agreements in connection with the NJ Transit rail unions voting on the proposed settlement to avert a strike.
Kate Coffey, Rachel Gonzalez and Peter Wolfson were mentioned in the "New Partners Yearbook 2016" in New Jersey Law Journal. This is the Law Journal's annual yearbook devoted to recognizing both newly promoted partners and newly hired lateral partners at law firms in New Jersey.
Patrick McCarthy was quoted in an article, “Former exec's conviction puts spotlight on safety for high-risk industries; Deadly mine explosion resulted in underwriting rethink by insurers,” in Business Insurance. McCarthy was quoted in connection with the significance of a case, in which Don Blankenship, the former CEO of Massey Energy Co., was acquitted of all felony charges, but convicted of a misdemeanor conspiracy charge for willfully violating U.S. mine health and safety standards that resulted in a 2010 explosion that killed 29 coal miners in West Virginia.
The Day Pitney alert, "Federal Contractors Must Provide Paid Sick Time in the Future," authored by Francine Esposito and Arielle B. Sepulveda was referenced in a Staffing Industry Analysts article, "New Bill Would 'Ban the Box' for Federal Contractors." In addition to the Fair Chance Act, the article discusses the executive order signed by President Obama that requires federal contractors to provide paid sick time leave. Esposito and Sepulveda noted that the requirement applies to all federal contracts awarded on or after January 1, 2017.
Stamford, Conn., August 24, 2015 - Day Pitney is pleased to announce that 68 attorneys have been selected for inclusion in the 2016 Best Lawyers in America. Best Lawyers ranks lawyers through peer-review surveys, and has been published annually since 1983.