POSTED BY ERIC GORDON ON MARCH 21, 2013

Some companies initially reacted to these threats by shutting down employee access to these social networking tools in the workplace.  Then came "apps" which enabled employees to engage in social media at work, but on their own, personal iPhones and similar devices.  Is creating a policy eliminating access on the employer's network the solution, or does it fail to address the problems that can be caused by employees posting to these sites, and writing personal emails and texts, at work and at home on their own time using their personal devices?

Social media has become a powerful tool for employers to use in the pre-employment and hiring process.  But how far can an employer go?  Google searches may or may not be ok, but what about checking Facebook pages and Twitter feeds?  Some employers request Facebook passwords from applicants – is that appropriate?  Or worse, is it even legal?

Legislation protecting employees' and prospective employees' social media profiles on sites like Facebook and Twitter has already been passed in California, Illinois, Maryland and Michigan.  Password protection laws are moving their way through state legislatures in various other states including New York, Texas, Massachusetts and several others. So far, the Florida legislature has yet to enact a password protection law, and is not currently considering doing so.  Despite the absence of such a law in Florida, it is not recommended to demand social media passwords from your employees and applicants!

Once an applicant is hired, what rights does he or she have to voice complaints about their workplace or supervisor?  Facebook has become the modern day water cooler, a place for employees to vent their frustrations about work and the workplace.  But what restrictions – if any – are placed on the employer for disciplining the employee (like the dreaded "Facebook Firing") for making negative comments through social media?  During the past 2½ years, the National Labor Relations Board – through its Acting General Counsel, Lafe Solomon – has inserted itself into this discussion.  AGC Solomon and the Board have reviewed hundreds of cases involving "Facebook Firings" or similar, disciplinary action against employees based on actions taken by the employees on their personal social media pages.  While in some cases the firings were upheld, in many instances the Board found that the firings violated the National Labor Relations Act.

Join me at the 18th Annual Akerman Labor & Employment Law Seminar where we will discuss these and other issues related to social media.  Hope to see you there!

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 21, 2012

On January 25, 2012, NLRB Acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office.

The Memorandum covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they were undertaken pursuant to unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report highlights two issues that employers need to recognize:

• Employer policies cannot be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes about individual circumstances, which are not made in relation to group activity among employees.

The report represents the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to new forms of electronic communication. Three cases involving social media questions are currently pending before the Board and those decisions will certainly give further guidance as the application of labor law to social media develops.

The report may be accessed at www.nlrb.gov.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 18, 2011

The National Labor Relations Board’s Acting General Counsel, Lafe Solomon, today released a report, which summarizes the outcome of investigations into cases involving involving the use of social media and employer media policies. Acting General Counsel Lafe Solomon stated his belief that the report will be of assistance to legal practitioners and human resource professionals.

In four cases involving employee use of Facebook, the NLRB Division of Advice found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. Therefore, the employees’ actions were permisisble under the NLRA, and employer discipline was an unfair labor practice.

In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected. In these situations, the employees’ actions were only related to personal goals and not for the benefit of the group. Thus, they were not concerted.

In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. The policies in question could be read to prohibit protected concerted activity of employees to discuss, and perhaps seek to change, terms and conditions of employment for a group. Thus, they chilled protected employee rights.

A final case involved an employer’s lawful policy restricting its employees’ contact with the media. In this situation, the policy only prohibited conduct that could not possibly be considered protected concerted activity.

The report provides needed clarification of proper employer policies and practices regarding employee social media use under the NLRA. The report may be obtained from the NLRB website.

POSTED BY SCOTT T. SILVERMAN ON MAY 24, 2011

The National Labor Relations Board issued a complaint last Friday against Knauz BMW, a Chicago area BMW dealership, alleging unlawful termination of an employee for posting photos and comments on Facebook that were critical of the dealership.

The employee, a car salesman, and coworkers were unhappy with the food and beverages at a dealership event. Salesmen complained that their sales commissions could suffer as a result. Following the event, the salesman posted critical photos and commentary on his Facebook. Other employees had access to the Facebook page.

The following week, the dealership asked the salesman to remove the posts, and he immediately complied. However, shortly thereafter, the employee was terminated for posting the images and comments.

The NLRB alleges that the employee’s Facebook posting was protected concerted activity within the meaning of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment

Again, employers must continue to be cautious in their actions based on employees’ use of social media. Clearly, the NLRB is taking an expansive view of what constitutes protected concerted ativity under the NLRA.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 8, 2011

The NLRB settled its case against a Connecticut ambulance services company that discharged an employee after she posted negative comments about her supervisor on Facebook. The employer agreed that it had maintained an overly broad internet posting, blogging and communication policy. Under the terms of the settlement, the company must revise its policies to permit discussion of wages, hours and working conditions and must not discipline employees for engaging in such conversations. The resolution of the employee’s termination was the subject of a private settlement.

Given the outcome in this case, employers should consider updating their policies to ensure compliance with the NLRB.

POSTED BY SCOTT T. SILVERMAN ON JANUARY 21, 2011

Employers beware: firing an employee for bad-mouthing the boss on social media may violate the National Labor Relations Act, even for a non-unionized employer.

The National Labor Relations Board just lodged a complaint against a Connecticut ambulance company alleging, among other things, that it unlawfully fired an Emergency Medical Technician for violating a policy that prevented her from depicting the company “in any way” over the internet without the company’s permission and from making disparaging remarks when discussing the company or its supervisors. The Board said the employee’s exchange of Facebook posts with co-workers constituted protected concerted activity, and firing her for those posts was a violation of the Act. The Board also accused the ambulance company of maintaining and enforcing an overly broad blogging and Internet posting policy that unlawfully infringed on its employees’ NLRA rights.

Although it may come as a surprise to some employers, all employees, even those who are not represented by a union, have protected rights under the Act. Section 7 of the Act states, in part, that employees have the right to engage in “concerted activities” for the purpose of “mutual aid or protection.” To be protected, the activity must be “concerted,” which means that it must be made on behalf of a group of employees, as opposed to an individual. Further, the activity must be for “aid or protection,” which means that it must be undertaken to benefit or improve the group’s employment terms and conditions. The Board takes the position that employees have the absolute right to engage in discussion and complaint regarding the terms and conditions of their employment.

The matter began when the employee posted a negative comment about her boss on her Facebook page using her home computer. The comment was supported by co-workers, which caused the employee to post additional negative comments about her supervisor. When the company discovered these postings, it suspended and later fired the employee under its policies, according to the Board. The Board’s position is that because the employees were using social media to engage in concerted discussion in order to improve the terms and conditions of their employment, it was protected activity under the Act. Further, the company’s policy was overbroad in violation of the Act, because it prohibited conduct that is protected under the Act and unlawfully chilled employees’ exercise of their rights.

This lesson for employer: best update your policies to take into account the use of social media and to ensure the restrictions do not run afoul the NLRA and other applicable law.