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.
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 firstname.lastname@example.org .
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 email@example.com mail to: firstname.lastname@example.org .