A particular NLRB (National Labor Relations Board) complaint has drawn so much media attention that Anthony Haller even heard the story on a BBC radio broadcast. Haller is a labor and employment specialist in law firm Blank Rome’s Philadelphia office, and we asked him to talk about this now-infamous complaint.
Who complained about what? A union member and emergency response technician was apparently very annoyed with her boss, because he was disciplining her as the result of a customer complaint. So she used her Facebook page to complain about him. Several co-workers added their agreements of her assessment and other supportive comments. Her boss learned what she and co-workers had posted, and fired her from the ambulance company for which she had worked.
A regional office of NLRB did an initial investigation of the situation and issued a complaint, suggesting that the termination may have violated a provision of the National Labor Relations Act. The essence of the case is that the technician was complaining about a disciplinary procedure—a classic case of protected conduct under the law, because employees (both union and nonunion) are permitted to discuss and protest the terms and conditions of their employment. But Haller cautions employers not to jump to conclusions about this complaint, the subject of an NLRB press release.
A complaint is preliminary. There are many steps, Haller explains, between a regional director’s complaint and a ruling from the Washington, D.C.-based NLRB—which even then could be appealed to a federal circuit court. NLRB and its regional offices have two roles: They both investigate and prosecute. And this complaint is still soundly in the investigation phase.
The director may have found that there were disputes of fact or that, in his or her view, a provision of the law was violated. In either case, the next step is for an administrative law judge to hear the case. And, depending on the judge’s ruling, there are still further steps to be completed before a ruling is issued—if ever—by NLRB. So Haller doesn’t want employers to act too soon.
Many media—and some employment law firms—have concluded that the employer’s social media policy in this case was the problem. It specifically barred employees from making “disparaging, discriminatory, or defamatory” comments about the company, managers, and others connected with the business. Discriminatory and defamatory statements are clearly against the law, but was the word “disparaging” too broad? That’s possible, but Haller urges employers and observers to do two things: First, focus on how the policy was applied in this case rather than on the policy itself, and second, wait until the case develops further before taking significant action. The complaint was vague, he notes, so to act too soon might go against what is eventually decided.