Tag Archives: national labor relations

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]

 

Banning Social Media

Social Media Series: Prohibiting Employees’ Use Of Social Media At Work

This article is part of an on-going, social media series.


Because the law still is evolving, many employers are fearful of disciplining and terminating their employees for conduct on social networking sites. While this apprehension is understandable, it need not paralyze employers from protecting their legitimate business interests with an appropriate social networking policy.

Recently, the National Labor Relations Board (NLRB) filed an unfair labor practice charge against American Medical Response of Connecticut for terminating an employee who posted insulting personal remarks about her supervisor on her Facebook page.  Although the parties settled the charge before the hearing, the NLRB has made it clear that it intends to aggressively prosecute employers that discipline employees for this type of behavior. Because the NLRB’s authority reaches both unionized and non-unionized employers, the potential ramifications to employers is widespread.

While there is still plenty of gray area regarding what type of online behavior an employer can prohibit, there is certain employee conduct that employers can forbid in order to protect themselves against unscrupulous employee activity on social networking sites. There are common circumstances of an employee’s online activity that generally remain lawful grounds for discipline.

The clearest circumstance is an employee’s use of social media while on the clock. An employee who engages in online activity for personal reasons at work likely is failing to be productive for the employer, and such conduct may lead to discipline up to and including termination. If the employer intends to prohibit personal use of social media while an employee is on the job, the employer should: (1) implement and distribute a written policy that prohibits personal social networking while at work or while working; (2) ensure that it enforces this policy consistently with all employees so as to avoid claims of discrimination; and (3) have documentation to support the employer’s belief that the employee engaged in such misbehavior at work. If an employee’s job responsibilities require him to be online, the employer should consider appropriate measures, such as whether to block access to social media sites.

Another clear circumstance where an employer can discipline employees for their use of social media is when the employer’s confidential and proprietary information is disclosed through the employee’s social network, regardless of whether such online activity takes place outside of the office and outside of work hours.

So that the employee is clear about how he may, if at all, discuss work through social media, the employer should take some basic precautions: (1) have the employee execute an enforceable contract that prohibits the employee’s use of or disclosure of confidential and proprietary information; (2) require all similarly situated employees to execute the same contract; (3) enforce the breaches of such a contract consistently with all employees who have executed it so as to avoid claims of discrimination; and (4) have evidence to support the employer’s belief that the employee engaged in such misbehavior at work.

While there are clearly social networking activities that an employer can prohibit, it must be careful not to cross the line. Under the National Labor Relations Act, employees are entitled to engage in “protected concerted activities,” which include discussing the terms and conditions of their work between two or more employees. An overly broad social networking policy may violate the act if it interferes with employees’ right to engage in such protected activity.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

[stextbox id="grey"]

What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

[/stextbox]