A notice from Stacy Gabriel of GABRIEL & ASHWORTH, P.L.L.C.


The National Labor Relations Board’s (“NLRB”) Acting General Counsel recently issued a complaint challenging an employer’s termination of an employee who made negative comments about her supervisor on her Facebook page.  The employee referred to her supervisor as a mental patient and sparked additional negative remarks about the supervisor from her co-workers on her Facebook page.  The complaint alleges that the employee’s Facebook comments are “protected, concerted activity” under the National Labor Relations Act and, therefore, her termination based on these comments was unlawful.

The complaint separately challenges the employer’s blogging and internet policy, which broadly prohibits making disparaging, discriminatory or defamatory comments when discussing the Company or its employees.  According to the complaint, the policy chills employees’ exercise of their right to engage in protected concerted activity.

The National Labor Relations Act (“NLRA”) rules relating to protected, concerted activities apply to both unionized and non-unionized employers.  A hearing on the complaint is scheduled for January 2011.  At that time, the NLRB will hopefully provide more guidance for employers on what action, if any, they can take in response to employee comments made on online social networking sites.  In the meantime, you should carefully review your policies to ensure they are not written in a way that could be viewed as chilling employees’ exercise of their NLRA rights.  Also, be very cautious before disciplining an employee for making negative comments about management or the Company.