February 11, 2011
The uncertain labor law status of corporate social networking policies was back in the news this week, as the National Labor Relations Board announced that American Medical Response of Connecticut (AMR) has agreed to revise its ban on "disparagement" of the company as part of a settlement. The case received considerable attention last year when acting NLRB General Counsel Lafe Solomon issued a complaint against the company’s policy as being overly broad in "chilling" employees' rights to engage in discussions about improvements of working conditions. The company was also accused of unlawfully terminating an employee based on exchanges with co-workers on her Facebook page about her supervisor. The complaint raised concerns among many companies that had drafted their policies in accordance with a decision by Solomon's predecessor to dismiss an allegation against a similar policy of a different company. The NLRB has not revealed AMR's new policy except to say that the company has agreed not to maintain any rules restricting discussions by employees of working conditions. Because of the way the NLRB operates, the NLRB General Counsel's actions are based entirely on his guess as to how the Board might rule in a case. Thus, one unfortunate effect of the settlement is to leave the legal issue in limbo since the case never went before the NLRB for a determination. Nevertheless, given the current composition of the Board, it may be better for employers that the issue remains unresolved for now.