In what labor and employment lawyers, legal scholars, and union officials are calling a ground-breaking case, the National Labor Relations Board (“NLRB”) has for the first-time filed a complaint to protect the rights of employees to express their opinions, with co-workers, about supervisors and employers on social network sites, such as Facebook, Twitter, and MySpace. The NLRB’s complaint specifically argues that a company cannot fire an employee for criticizing a supervisor online to co-workers.

In the complaint filed this month, the NLRB argues that an ambulance service company, American Medical Response of Connecticut, fired an emergency medical technician when she criticized her supervisor on Facebook with several vulgarities and by also referring to him as a “17” – which is the company’s lingo for a psychiatric patient. Her postings resulted in several other co-workers commenting on her posts.

The National Labor Relations Act is a law that gives workers, whether unionized or not, the federally-protected rights to discuss wages, working conditions, and unionization. The NLRB has stated that the company’s policy prevents employees from depicting the company “in any way” on social network sites where they also have photos of themselves posted and that due to the “in any way” restriction the policy is overly broad and unreasonably prevents employees for exercising their rights to discuss working conditions.  

Therefore, what implications does this newly-filed case have for Virgin Islands’ employers? To begin with Facebook can still be used to verify the honesty of employees who, for example, claim they are sick or injured, but then post pictures of themselves on a boat that day diving off the Willie T or against employees who post comments that are disloyal to the company or comments that disparage a co-worker that are not related to work- the physical appearance of a co-worker.

However, I would strongly advise all Virgin Islands’ employers, whether your employees are union, non-union, or both, to review your Internet, social network, or general employee policies to ensure they are not vulnerable to a claim that a particular policy “chills” employees’ abilities to engage in discussions about working conditions, wages, or unionization, whether at the workplace or online. In the meantime, I will be closely watching the progression and final decision in this case of first-impression before the NLRB.