NLRB seeks to clarify protected use of social media by employees

February 28, 2013 (Press-News.org) NLRB seeks to clarify protected use of social media by employees

Article provided by Matheson & Matheson, P.L.C.
Visit us at http://www.mathesonlegal.com

Americans' increasing use of social media has led to some challenges in the employment law world. Employers wish to avoid widespread publication of negative comments about their businesses online, but some communications or postings by employees are protected speech, even if the comments are disparaging to the employer.

Recently, the National Labor Relations Board issued a few decisions regarding employers' regulation of employee social-media use and when an employee can and cannot be fired for comments made online. In general, employees gained a little more freedom to complain online about their working conditions, and an employer's total ban on making negative comments about the company on social media is likely too broad.

NLRB issues rulings on social media use

The National Labor Relations Act was passed in 1935 to help workers create unions and organize to improve their working conditions and wages in the industrial age. The Act gave workers in the private sector -- regardless of whether they are part of a union -- the right to engage in "concerted activity" to take action for their mutual aid or protection regarding their employment conditions. This means that, generally, employees cannot be fired for speaking negatively about their employers, pay or conditions of employment if the speech is discussing working conditions with fellow employees in an attempt to join together to improve them.

Nancy Cleeland, the director of public affairs for the NLRB, told ABC News that employees still "have a right to discuss their wages and working conditions with each other, and to join together to try to improve them," even if the discussion takes place using social media. In addition, Mark G. Pearce, chairman of the NLRB, said to the New York Times that many people see social media as the new water cooler, where employees discuss work-related issues. Pearce said, "All we're doing is applying traditional rules to new technology."

However, the rules regarding what is acceptable and what is not acceptable regarding employers' social media policies are not always clear. After working with the NLRB to craft its social media policy for employees, Wal-Mart Stores Inc.'s ban on "inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct" was given the stamp of approval from the NLRB's general counsel.

On the other hand, the NLRB said that General Motors Co.'s policy stating that "offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are online" can be seen as unlawfully prohibiting "a broad spectrum of communications that would include protected criticisms of the employer's labor policies or treatment of employees."

While the NLRB's recent decisions are intended to clarify employee's rights regarding social media use, this is still a relatively new frontier in employment law. If you are crafting a social media policy for your business, or if you have been fired for comments made on social media about your employer, contact a knowledgeable employment attorney for more information.