SC Lawyer, November 2011, #2. Facebook, Twitter and NLRB: Can an Employee Really Do That? (Youd Be Surprised.).

Author:By Charles L. Appleby IV
 
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South Carolina BAR Journal

2011.

SC Lawyer, November 2011, #2.

Facebook, Twitter and NLRB: Can an Employee Really Do That? (Youd Be Surprised.)

South Carolina LawyerNovember 2011Facebook, Twitter and NLRB: Can an Employee Really Do That? (Youd Be Surprised.)By Charles L. Appleby IV Facebook, Twitter and other social media are everywhere. Facebook alone reports having more than 750 million active users (i.e., users who have returned to the site in the last 30 days) who spend more than 700 billion minutes per month on the website. http://www.facebook.com/press/info.php?statistics. These users arent just talking to a few people eitherthe average user has more than 125 Facebook friends. Id. With so many users and so much activity, its no wonder employers are trying to limit comments from employees that may be negative about the company or a particular manager. Employers need to think twice before disciplining an employee or imposing an overly broad social media policy, though, as the National Labor Relations Board (NLRB) has stepped in to protect employees rights.

Is the NLRB really going after employers? According to an August 2011 survey by the U.S. Chamber of Commerce, the NLRB has reviewed more than 129 cases involving social media in some way. Michael Eastman, A Survey of Social Media Issues Before the NLRB, August 5, 2011, available atwww.uschamber.com/sites/default/files/reports/NLRB%20Social%20Media%20Survey.pdf. The majority of those 129 cases, according to the survey, deal with allegations that an employer had an overly broad social media policy or had unlawfully retaliated against employees for their online communications. Id. The position taken on these complaints by the NLRB Office of General Counsel indicates that businesses will need to carefully review their current social media policies and be aware that disciplining employees for what they said on a social media site may not be allowed.

Try your luck

Try your luck and guess which of the actions by employers and/or provisions from social media policies below are permitted and which are not. The correct answers, according to the NLRB, are at the end of the article.

Action #1: After a disagreement with a supervisor, an employee wrote on her Facebook profile from her home computer: "love how the company allows a 17 to become a supervisor ('17' is the company's term for a psychiatric patient)." The remark drew supportive responses from her co-workers, and it led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated because such postings violated the company's Internet policies.

Action #2: A bartender posted a message on his Facebook page that referenced the employer's tipping policy in response to a question from his sister. The bartender was later terminated by the employer via Facebook.

Action #3: A retail employee posted on Facebook about management "tyranny" and said that a lot of employees were ready to quit. He received generally supportive comments from co-workers, like "hang in there."

Policy #1: A company's social media policy prohibits talking about company business on personal accounts and from posting anything that an employee would not want a manager or supervisor to see or that would put his or her job in jeopardy.

Policy #2: A hospital's social media policy prohibits any communication or post that constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer or staff member, or that might damage the reputation of the hospital or its staff.

Policy #3: A supermarket chain social media policy prohibits employees from pressuring their coworkers to "friend," connect or otherwise communicate with them via social media.

Policy #4: A companys social media policy prohibits revealing personal information regarding coworkers, company clients, partners or customers without their consent.

If some of your responses were incorrect, read on to learn what factors the NLRB considers and how situations brought before them in 2011 play into future social media policy development.

Which employee actions are protected?

The National Labor Relations Act (NLRA) protects ALL employees, including union and non-union, who engage in "concerted activity." A company violates the NLRA if it interferes with, restrains or retaliates against individuals engaged in those activities whether or not the employer has a specific social media policy.

If a company has a social media policy, the policy violates the NLRA if it would "reasonably tend to chill employees in the exercise of their rights" under the NLRA, including the right to engage in protected concerted activity. A policy has this effect if it explicitly restricts...

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