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Social Media rights

Social Media Series: Employers Have To Be Diligent About Not Violating Employees’ Rights When It Comes To Social Media


This article is part of an ongoing series about social media in the workplace. We’re interested in your feedback/questions, so please comment and the authors may address your issue in their next article.


Tweet from Uncle Sam: Let your employees talk about their working conditions through social media — or else!

Social media can get employers in trouble. Without a narrowly tailored policy guiding how the company will manage its employees’ use of sites such as LinkedIn, Facebook and Twitter while the employee is on the job, the employer may very well run afoul of the National Labor Relations Act, which is enforced by the National Labor Relations Board (NLRB).

The NLRB’s avid interest in social media stems from its charge to ensure that both union and non-union employees’ federal right to discuss the terms and conditions of employment, including wages, hours and other working conditions, is protected.

The increased interest by the NLRB in matters affecting employees’ use of social media began late last year. At that time, the federal agency filed a complaint against a Connecticut employer for terminating an employee who had posted negative comments about a supervisor on Facebook. The NLRB tweeted this past winter that the case had settled. The employer agreed to: (1) revise its social media policies to ensure that the employees are guaranteed the right to discuss the terms and conditions of employment and (2) never discipline or fire employees for engaging in such activity in the future.

In Arizona, an Arizona Daily Star reporter was terminated for inappropriate and unprofessional tweets. The termination resulted in the employee filing an unfair labor practice charge with the NLRB against the Star. After investigation, the NLRB dismissed the charge, concluding that the termination was lawful because the tweets at issue did not relate to the terms and conditions of employment.

Just last month, the NLRB announced its intention to file a civil complaint against Thomson Reuters for firing a reporter for one of her tweets. The tweet read: “One way to make this the best place to work is to deal honestly with Guild members.”  According to the NLRB, Thomson Reuters violated the reporter’s federal right to comment on the terms and conditions of her employment.

The NLRB’s growing interest in social media as it relates to employees demonstrates that there is a line to be drawn between protected and non-protected activity taking place in cyberspace. Determining where to draw that line is challenging. Even the NLRB recognizes the fast-moving nature of emerging social media issues in the context of employee-protected activity.

On April 12, the NLRB’s Office of the General Counsel issued a memorandum requiring regional offices to submit social media cases to the NLRB’s Division of Advice for review prior to issuing an administrative complaint.  The memorandum states that the Division of Advice must handle prosecution of social media cases, because there is a dearth of case law currently available and the NLRB considers the issue a policy priority.

Co-author: Carrie Pixler

[stextbox id="grey"]More than ever, employers need guidance about social media in and around their workplaces. We’d like to hear from you about your issues and questions related to social media and your business. Please post a comment below this story and we may address your issue in the next edition of our Social Media Series.[/stextbox]