Employers may have to wait for another case for precedent regarding workplace internet posting policies. In October 2010, the NLRB filed a complaint against the American Medical Response of Connecticut, Inc., after the company fired an employee who made disparaging comments on Facebook about her workplace and boss. 
The Complaint alleged violation of Section 7 of the National Labor Relations Act that protects workers’ rights to “self-organization, to form, join or assist labor organizations, to bargain collectively through representation of their own choosing and to engage in other concerted activities for the purpose of collective bargaining of other mutual aid protection.”
At issue in that case was an employer’s policy, which stated “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, coworkers and/or competitors.”
Many commentators expected the new, more employee friendly NLRB, to conclude that such a broad policy was unlawful because it prohibits protected speech. But today, the parties to that case called off a hearing and appear to be engaged in settlement talks.
It might be time to revisit your workplace internet posting policies. Is your policy so broad that it prohibits discussion about wages and working conditions? If so, your policy may be unlawful. Although a court has not expressly decided the issue, plaintiffs’ counsel are on notice that the argument and legal theory has some traction.
