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On November 2, 2010, the National Labor Relations Board issued a news release reporting that it was pursuing a complaint against an employer for terminating an employee who criticized her supervisor on Facebook.  In issuing this complaint, the NLRB is asserting that an employee’s Facebook postings are “protected concerted activity,” even if they criticize their employer in violation of company policy.  This means that the NLRB is taking the position that under certain circumstances an employee cannot be fired or disciplined for postings negative comments about their employer online.  It also means that an Internet Policy prohibiting employees from disparaging the company online is invalid.  The news release can be found here.

This new direction by the NLRB is a “game change” for a number of reasons.  First, it not only gives employees an almost unrestricted right to criticize their employers online, it also forbids employers who are subjected to such criticism from disciplining the employees responsible.  In addition, it will require many employers to review and revise their Internet Policies.

At this point, the complaint is still pending.  It is possible that the NLRB’s view will be rejected by either the Administrative Law Judge or by a Court of Appeals.  However, unless the NLRB is rebuked by the Courts of Appeal, it will probably continue to pursue complaints against employers that discipline employees for criticizing their employers online.

In response, employers should consider the following:

1.    Carefully reviewing and, if necessary, revising their Internet policies; and

2.    Review and analyze potential disciplinary actions involving internet speech before acting.