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Posted: September 16, 2011

Tweet from Uncle Sam:

Let your employees chat about work through social media--or else!

Troy Rackham, John Balitis and Carrie Pixler-Ryerson

Social media can get employers in trouble. Without a narrowly-tailored policy guiding how the company will manage its employees' use of sites like Linked-in, 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.

Recently, 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.

Last spring, 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 prosecution of social media cases must be handled by the Division of Advice because there is virtually no case law currently available and the NLRB considers the issue a policy priority.

As these stories and events show, now, more than ever, employers need guidance about social media in and around their workplaces. We would 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.

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Troy Rackham holds the highest rating awarded by Martindale-Hubbell® Law Directory as an AV® PreeminentTM Lawyer. Selected as a "Rising Star" by Colorado Super Lawyers in 2009, 2010 and 2011. His practice includes employment and civil rights law, legal and medical malpractice and other forms of complex litigation. Reach Mr. Rackham at trackham@fclaw.com .

John Balitis practices in the labor and employment area with Fennemore Craig representing employers in arbitration, litigation and administrative proceedings.  He can be reached at jbalitis@fclaw.com mail to: jbalitis@fclaw.com .

Carrie Pixler-Ryerson practices in the area of appeals as well as in labor and employment at Fennemore Craig.  She can be reached at cryerson@fclaw.com  mail to: cryerson@fclaw.com.

 

 

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Readers Respond

Great story, and good information! It does frost my cookies, though, that the government is apparently interfering with the right of a company to protect its reputation from employees who want to trash the company or supervisors. It seems there should be a difference between discussion of working conditions, etc., between friends, and posting something on social media for everyone to see. It is hard enough in cyberspace for a company to avoid venom from competitors or one disgruntled customer, but this seems to make it harder. What are your thoughts? How can a company balance the legitimate need to protect its reputation with compliance with overbearing government regulations? By John Heckers, MA, CPC, BCPC on 2011 09 16
The ever changing landscape of social media and the potential impacts on business and the associate require consistent scutiny by both. A carefully crafted document that outlines what is appropriate is a good start. I'm always concerned about other landmines that might be created if the conditions of employment are to narrowly defined. Thanks for the information, it's very useful and timely. Mark By Mark Hopwood on 2011 09 16
Great article. Those of us that do a lot of work in social media are keenly aware that the laws and protocol have not caught up with activities. As a branding professional, I advise clients that it is not enough to tell employees to "use good judgment" when the risks are this high -- to the company, its clients and the employees. Thank you for bringing these issues into the light! Lida By Lida Citroen on 2011 09 16

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