In the face of ever-changing internet technologies and the rise of social media outlets, employers nationwide are dealing with the challenges of adapting their policies to meet today’s workplace environment.  On August 18, 2011, the Acting General Counsel for the National Labor Relations Board (“NLRB”) issued a report discussing trends in its social media cases within the last year.

In its report, the NLRB opined that employees’ personal postings on Facebook are protected concerted activity when “engaged in with or on the authority of other employees, and not solely by and on behalf of the [posting] employee.”  Instances of employees being unlawfully terminated for social media activity include:

  • a conversation on Facebook among co-workers about job performance in response to one employee’s criticisms;
  • negative remarks posted on Facebook about a supervisor initiated by an employee who was denied union representation to which she was entitled while filling out a job-related incident report;
  • pictures and comments posted by employees on Facebook expressing frustration with a sales event hosted by the employer that the employees feared would negatively impact sales and commissions; and
  • a Facebook conversation criticizing an employer’s tax withholding practices initiated by a former employee, and in which two employees participated and were subsequently discharged.

Conversations on Facebook, or postings on other social media such as Twitter, however, are not likely to constitute protected concerted activity when they are offensive or do not engage multiple employees.  Therefore, the NLRB found that employers had lawful grounds for terminating employees in the following cases:

  • a newspaper reporter who repeatedly posted inappropriate “tweets” on his personal Twitter blog, which were not related to the terms and conditions of his employment, while covering his beat;
  • a bartender who complained about his employer’s tipping policy on Facebook but never discussed the issue with any co-workers or management;
  • an employee who made disparaging remarks about her employer on a Senator’s Facebook “wall” but did not discuss her concerns with any co-workers;
  • an employee who engaged in a Facebook conversation with friends who were not co-workers where the employee made inappropriate comments about her employer’s mentally disabled clients; and
  • a retail store employee who made profane comments about store management on Facebook and received responses from co-workers expressing only emotional support, but not discussing the terms or conditions of employment.

In addressing their employees’ social media-related conduct, employers must take care not to develop and implement policies that are overly broad in scope.  A social media policy is more likely to be found lawful if its limitations are narrowly drawn and guidance is provided as to why certain conduct is prohibited.  For example, policies that are intended to prevent harassing conduct or ensure a consistent media message are acceptable as long as they cannot be interpreted as prohibiting employees from speaking out about the terms and conditions of employment or sharing personal information with co-workers and non-employees.

The NLRB’s full report can be viewed by clicking here.

Keesal, Young & Logan Employment Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.