By Lesley Pate Marlin

Employers should view a complaint recently filed by an acting regional director of the National Labor Relations Board (“NLRB”) as a yellow light on policies relating to employee use of the internet or social media.  The NLRB enforc

es the National Labor Relations Act (“NLRA”), which contains certain provisions applying to all employees, not just union employees.  For example, the NLRA permits any employees to act together to improve working conditions and prohibits employers from taking any action to interfere with such “protected concerted activities” by employees.  The recent complaint claims violations of this legally protected right – namely, that:

• American Medical Response, an ambulance service, unlawfully terminated an employee for posting negative remarks about her boss on Facebook; and
• AMR’s internet use policy unlawfully prohibits employees from making negative comments about the company or discussing the company at all without the company’s permission.

The NLRB has previously held that employers can establish reasonable policies, such as internet use or social media policies, to govern work-related conduct and minimize liability from employee action.

The complaint itself signals a possible shift in the NLRB’s position on the use of social media policies by employers. Employers should stay tuned for further developments as the case progresses.

In the meantime, employers should:

• Proceed with caution before taking any disciplinary action against employees for violations of social media or internet use policies, consulting with experienced legal counsels before making final disciplinary decisions; and
• Proactively review their existing policies carefully and consider whether revisions should be made to minimize legal risk.

Lesley Pate Marlin practices labor and employment law at the law firm of Venable LLP.  She can be reached at (202) 344-8033 or lpmarlin@venable.com.