Employers increasingly are adopting social networking policies regulating employee communications on Facebook, Linkedin, Plaxo and other social medial sites. While appropriate use of these and other similar policies can be a critical for many businesses to control improper use of sensitive information, productivity or other critical business functions, a recent National Labor Relations Board (NLRB) settlement highlights the need for employers also to use caution when drafting and applying these and other policies regulating employee communications to avoid violating Federal labor laws protecting worker organization, privacy and other protections.
A February 7, 2011 settlement agreement reached between a Connecticut ambulance service operator and the National Labor Relations Board (NLRB) highlights the need for employers to use care to properly design and administer social networking, e-mail and other employee communication policies to protect employer interests without violating the National Labor Relations Act (NLRA) and other employee rights.According to the NLRB, Connecticut ambulance service provider American Medical Response (AMR) and the NLRB have agreed to settle a complaint filed on October 27, 2010 that charged AMI with violating the National Labor Relations Act (NLRA) by firing an employee for making derogatory comments about her supervisor on Facebook.
In its complaint against AMR, the NLRB charged that AMR's termination of an employee for making derogatory statements about her supervisor on Facebook violated the NLRA because the employee was engaged in protected activity under the NLRA when she posted the comments about her supervisor, and responded to further comments from her co-workers. The NLRB complaint also charged AMR maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.
Under the terms of AMI's settlement with the NLRB[i] approved February 7, 2011, AMI agreed:
To revise its employee handbook rules to avoid improperly restricting employees from discussing their wages, hours and working conditions with co-workers and others while not at work in violation of the NLRA;
Not to discipline or discharge employees for engaging in such discussions; and
Not to deny employee requests for union representation or threaten employees for requesting union representation in the future.
Federal labor law requires that employers tread carefully when dealing with communications by employees concerning terms and conditions of employment and other union or other organizational activity. Existing federal law limits the actions that employers can take to deter or influence employee choices about whether to support or oppose a union certification campaign, to influence the certification of one union representative over another and to deter or penalize employees for communicating about terms and conditions of employment.Under the NLRA, for instance, employees generally may discuss the terms and conditions of their employment with coworkers. The protections afforded by the NLRB to employee communications about terms and conditions of employment can apply to both unionized and non-unionized employees and workforces. Subject to certain reasonable restrictions on communications within the workplace allowed by the NLRA, the NLRA generally restricts the ability of an employer to prohibit employees from communicating about terms and conditions of employment.
Worker awareness of these protections has grown in many workplaces as a result of a new policy requiring employers that are government contractors to post notification of NLRA rights in the workplace implemented by the Obama Administration in May, 2010, aggressive union organization efforts in the health care and certain other industries and other developments. As a consequence, employers need to exercise care to avoid violating the NLRA and other federal labor laws when designing, communicating and applying social networking, e-mail, internet, and other policies that regulate on or off-duty communications by employees.
To minimize liability risks under the NLRA, employers should consult with qualified labor and employment counsel before discussing or taking other action in response to these activities to minimize risks of unintentionally running afoul of these requirements. Employers should exercise care even if the communication restraint adopted to comply with legally mandated restrictions on communications such as those required by the privacy and security mandates of laws such as the Health Insurance Portability & Accountability Act (HIPAA). While the NLRA generally permits restrictions on communications required to comply with law, health industry and other employers should be prepared to demonstrate the legitimacy of the legal need and their tailoring of restrictions on employee communications to meet that need.
In addition to tailoring policies to comply with the NLRA, employers also should manage potential privacy or other similar exposures that may arise from monitoring or investigating employee conduct on e-mail, social networking and other mediums. Among other things, employers should review and tailor disclaimers of employee privacy, background consent, investigations and other policies to reserve rights to investigate and monitor relevant on and off-duty communications and conduct that may impact the employer's business.
In an age where employees increasingly use personal or third-party PDA or other systems, it also is important to draft these policies and consents to empower the employer to monitor and address conduct and communications that an employee may engage in within or outside business hours relevant to company concerns, whether conducted on company premises, operating systems or communication systems or not. In doing so, however, employers should exercise caution in drafting and administering these policies to keep in mind and manage the potential limitations and risks that the NLRA, reasonable expectations of privacy, wiretap and other laws fuel.
If your organization needs advice or assistance in responding to labor and employment issues in your health care organization or other health care matters, consider contacting the author of this article, Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail to [email protected]
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is nationally known for her more work, training and presentations, and publications on health industry and other staffing and employment, compensation, regulatory, and other operations, risk management and compliance matters. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. A popular lecturer and widely published author on privacy and other human resources, employee benefits, and compensation matters, Ms. Stamer also publishes and speaks extensively on staffing and human resources, compensation and benefits, and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see www.cynthiastamer.com.
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[i]AMR separately resolved allegations concerning the employee's discharge through a separate, private agreement with the employee.