Is Facebook protected at work?

Another Reason to be Cautious About Employees’ Social Media
By Barran Liebman

It seems like almost everyone is using Facebook, Twitter, MySpace or some version of a social networking site–at least it seems like most of your employees are. You may have good reason to be concerned about what employees are saying about your company, but a recent complaint issued by the National Labor Relations Board serves as a good reminder that you also have good reason to proceed cautiously when you see something you don’t like. Your employee’s published negative comments about a supervisor just might be protected.

The NLRB, which enforces federal law protecting employee rights to engage in concerted activity, thinks that employers shouldn’t have a right to discipline employees for their media postings if the posting can be seen as concerted activity. The Board issued a complaint against an employer that terminated an employee for a posting disparaging comments about a supervisor on her Facebook page, alleging that the employer’s actions were in retaliation for the employee’s assisting a union and that the employer was trying to discourage employees from making similar negative comments. As part of the complaint, the Board is accusing the employer of maintaining unlawful policies on blogging and internet use, and unlawful standards of conduct; the theory is that they are unlawful because they prohibited employees from engaging in concerted activities through social media. In short, the Board alleges that the employer interfered with, restrained, and coerced employees’ exercise of rights under the National Labor Relations Act, which allows employees–in both union and non-union workplaces–to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Social media is new, so there isn’t a body of Board law to help employers. This complaint is probably the first (but it surely won’t be the last). It arose in the context of a unionized workforce and started when the employee was denied a request for a union representative during an investigatory interview. She made her point about her supervisor on her Facebook page, and other employees joined in (something the Board sees as protected concerted activity.) It will take a while for this case to be tried and decided; but in the meantime, smart employers will use it as a reminder that it may be time to review and update policies.

Remember that if you interfere with the rights of employees to engage in protected concerted activity, you don’t have to have a union in place to violate this law. And remember that the Board looks carefully at employer policies, even if there isn’t any discipline to complain about. Be cautious about creating, applying, and enforcing policies about employee blogging and internet posts–you may have other policies that adequately protect you from employee technology misconduct. If your policies address employee social media use, make sure that they address only legitimate business concerns, are evenhandedly applied, and do not interfere with employees’ protected concerted activity (such as complaints about wages, working conditions, supervisors). If you have a concern about an employee’s posting, make sure you look at the situation carefully with the National Labor Relations Act in mind–to help, we have posted the Board’s “Basic Guide to the National Labor Relations Act” on our website at http://www.barran.com/pdf/2010/NLRB-Basic-Guide.pdf.

You can also find the same “Basic Guide” on the NLRB’s own website at: http://www.nlrb.gov/nlrb/shared_files/brochures/basicguide.pdf. We just think you’ll have a little more fun visiting our website.

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