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NLRB ruling provides new guidance for employers’ social media policies
The agency addressed protections for employees who engage in “concerted activity” designed to improve wages or working conditions through social media.

These days, a good online reputation is an invaluable asset for any business. So, employers often — and rightfully — find themselves wanting to prevent their employees from making disparaging or negative comments online.

To this end, many companies have drafted policies that use preventative strategies govern what their employees can say and do on the Internet, especially with regard to social media sites like Facebook and Twitter. Increasingly, though, these policies are being struck down by federal regulators who say that they wrongfully impinge on employees’ rights to have open and frank discussions about working conditions.

Take, for example, the recent ruling by the National Labor Relations Board in a case involving a New York nonprofit called Hispanics United of Buffalo. The case centered around several caseworkers at the nonprofit who claimed that they were wrongfully fired after having a discussion about work on Facebook.

The issue started when one employee threatened to complain to management that the other employees were not working hard enough. Another employee posted a status update on Facebook complaining about the situation and asking her coworkers how they felt about it. A discussion ensued, during which negative and sometimes angry comments were made about the workplace and the employee who complained. Ultimately, the workers who participated in the conversation were fired for violating the nonprofit’s anti-harassment policy.

The employees challenged their termination with the NLRB. The agency sided with them, holding that their employer’s actions violated a federal law that protects employees who are engaged in “concerted activity” designed to improve wages or working conditions.

Confusion still reigns

The NLRB’s ruling sets a precedent for nearly all private-sector employers in the United States. (Normally, NLRB rulings focus on unionized workplaces and public employers, but rulings based on the “concerted activity” law have broader reach.) However, it shouldn’t be interpreted as a blanket prohibition against taking action when an employee makes negative work-related comments online.

While discussions of working conditions are protected, personal venting is not. For example, the NLRB upheld the firing of an Arizona reporter who posted Facebook status updates about his frustration that there was not more violent crime to report on. The NLRB also upheld the firing of an Illinois bartender who posted updates saying mean things about the bar’s customers.

Because the rules surrounding employers’ abilities to regulate and take action against the online speech of their employees are still emerging, it is important for companies to seek experienced legal advice before wading into these unfamiliar waters. An experienced employment law attorney can help employers draft proactive social media policies that ward off damaging online content while protecting employees’ rights. If action does need to be taken against an employee, the attorney can help make sure that the employer follows appropriate laws when doing so.

Keywords: employment law, social media
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