Last month, employers’ attention was focused on the settlement of a matter in which the NLRB originally had announced plans to prosecute a complaint brought by its Connecticut regional office regarding the termination of a union member/employee who had posted negative remarks about her supervisor and her employer on her personal Facebook page. The employee had been fired specifically for posting the derogatory comments. After investigating that firing, the regional office determined that the postings were “concerted activity” which was protected by federal law, and that the employee’s discharge was a violation of Section 7 of the National Labor Relations Act. It also determined that the company’s internet policy was overly restrictive to the extent that it precluded employees from making any disparaging remarks when discussing the company or its supervisors. Both issues were settled, with the company agreeing to a revision of its internet policies to ensure that they did not restrict employees’ rights to communicate freely about working conditions, and an agreement from the company not to fire individuals for engaging in such activity.

Within weeks of that settlement, the NLRB issued another opinion – this time involving an employee who posted derogatory comments about his employer after his termination. Stephens Media, LLC d/b/a Hawaii Tribune-Herald and Hawaii Newspaper Guild Local 39117, Communications Workers of America, AFL-CIO, 356 NLRB No 63, confirming order issued February 14, 2011. In that case, an Administrative Law Judge issued a decision finding that an employer had violated the NLRA by taking certain actions, including “disparately and discriminatorily enforcing its security access policy against the Union; discriminatorily prohibiting employees from wearing buttons and armbands in support of discharged or suspended employees; and promulgating and maintaining a rule prohibiting employees from making secret audio recordings of conversations in response to protected activity.” The same ALJ also ruled that the company violated the Act by suspending and discharging certain employees.

The issue of interest here is the fact that after the ALJ ordered the company to reinstate the discharged individuals, the company argued that one of the individuals should not be returned to work because of negative blog postings that he had made after his employment termination. To support that argument, the company cited the Supreme Court’s long-standing 1953 decision referred to as the Jefferson Standard case. However, in that case, the question was whether an employer could lawfully terminate employees for statements made during the individuals’ employment, when those statements disparaged the company’s products. There, the Supreme Court held that the terminations were legal because employees owed a “duty of loyalty” to the employer, and that the disparaging remarks concerned “the very interests which the attackers were being paid to conserve and develop.” The Jefferson Standard case also has been cited for the premise that if an employer becomes aware of such pre-discharge conduct after an unlawful discharge/order to reinstate, back pay may be cut-off and reinstatement denied to the employee on the ground that such conduct, if known, would have supported the employee’s firing.

The NLRB distinguished the Jefferson Standard case from the present situation. Here, the derogatory remarks occurred post-discharge, after it already had been determined that the discharge was unlawful. The focal issue for the NLRB was whether the employee’s post-discharge remarks could form the basis of a denial of reinstatement or could cut-off a claim for back pay. The NLRB says that they cannot, stating that, “[s]imply put, employees who are unlawfully fired . . . often say unkind things about their former employers [after the fact].” According to the NLRB, employers who violate the law should not be permitted to escape a full remedy for the effects of their unlawful actions based on the fired employees’ “natural human reactions” to those actions.

This case differs from the Connecticut case, where the individual was fired for the derogatory Facebook posts, which ultimately were considered to be protected concerted activity. In the Hawaii Tribune-Herald case, the employer was found to have unlawfully terminated an employee, who then engaged in the derogatory blogging, which the company then attempted to use to block reinstatement of employment. While the two cases are different, the moral-of-the-story for employers is similar: do not assume that because the tenor, the substance, or the timing of internet communications is objectionable to the company, those communications can form the basis of adverse employment decisions regarding employees or former employees.