You Posted What on Twitter? #Fired!

The use of social media has grown exponentially. Facebook is projected to reach one billion active users by August, and Twitter is on track to reach 500 million users this month.  Smart phones allow us to post our opinions, complaints, and musings on social media sites instantaneously – and often, it seems, without much thought.

Many, if not most, employees actively use one or more social media sites.  This is a cause of concern for business owners, and with good reason. No business owner wants to see his or her business  disparaged worldwide by a disgruntled employee firing off a virulent post on Facebook.  The threat of damage caused by the disclosure of confidential information about the business or a client or customer is real. So is the possibility that an employee might write a social media post that is perceived as offensive by another employee, thus potentially exposing the business to a discrimination or  harassment claim under state or federal law.

One step proactive business owners have taken to try to limit risk is to implement a social media policy. Such policies place some restraint on what an employee can post about the business.  Seems like a reasonable step – and it is, if the policy is properly drafted. However, a number of businesses have recently discovered that their social media policies have run afoul of the law, with unfortunate consequences.

The challenge to social media policies has come from an unexpected source:  the National Labor Relations Board (“NLRB”).  The NLRB is charged with enforcing the National Labor Relations Act (“NLRA”), a law enacted by Congress in 1935 to protect the rights of employees and employers, and to encourage collective bargaining.

The NLRB has been busy applying the venerable NLRA to decide whether company social media policies violate employee rights.  Section 7 of the NLRA gives employees the right to engage in “concerted activity for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA prohibits employers from interfering with an employee’s rights under Section 7.  It is important to note that these two NLRA sections apply to all employers – not just employers whose businesses are unionized. The NLRB has repeatedly ruled that social media policies violate Section 8(a)(1) when they restrict an employee’s right to discuss the terms and conditions of employment with other employees on social media.

On January 24, 2012, the NLRB General Counsel’s office issued a report discussing fourteen social media cases decided by the NLRB in the last year.  In the majority of these cases, the NLRB found that the company’s social media policy was overbroad and violated Section 8(a)(1).  In some of these cases, the employer’s decision to discharge the employee because of a violation of the social media policy was actually overturned by the NLRB.

These recent NLRB decisions provide guidance on the kind of social media policy language that will be found to violate the NLRA.  For example, the NLRB struck down social media policies that contained the following provisions:  prohibitions on “disrespectful conduct” and “inappropriate conversations” on social media; prohibitions on employees using social media to engage in “unprofessional communication” that could “negatively impact the employer’s reputation or interfere with the employer’s mission” or unprofessional or inappropriate communication regarding members of the employer’s business community; a requirement that employees obtain the employer’s permission before identifying themselves as the employer’s employees on social media sites. Interestingly, this last provision was deemed unlawful because the NLRB believes social media personal profile pages serve an important function in enabling employees to use online social networks to find and communicate with their fellow employees.

On the other hand, at least one employer’s social media policy passed muster with the NLRB.  This policy only prohibited the use of social media “to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination,  harassment, or hostility on account of age, race, religion, sex, ethnicity, disability, or other protected class, status or characteristic.”

The lesson to be learned here is that, in this age of instantaneous social media blasts, every business should have a written social media policy for its employees.  But you have to get it right.  Otherwise, your good intentions can backfire and result in liability for improperly restricting an employee’s right to discuss terms and conditions of employment – on Facebook.

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