*By Jason Rossiter and Patrick J. Hoban
With the onslaught of Facebook, Twitter, and related social networking services, many employers drafted aggressive policies regarding employee use of social media. Now, many of those polices may be in jeopardy.
The National Labor Relations Board (“NLRB”) recently issued a complaint against an employer that fired an employee who posted negative remarks about her supervisor on her personal Facebook page. The negative remarks drew supportive "comments" from her co-workers, which in turn led to further negative comments being made about this supervisor from the employee. The employee was fired three weeks later.
The NLRB took the position that the employee’s posting on her personal Facebook page constituted protected concerted activity. The NLRB stated its belief that the company’s social media policy, which also covered blogging and internet posting, contained unlawful provisions. Specifically, in its policy, the company prohibited “employees from making disparaging remarks when discussing the company or supervisors” and “depicting the company in any way over the internet without company permission.” The NLRB concluded that this policy language interfered with the employees’ exercise of their rights to engage in protected concerted activity.
Though no court has yet adopted the NLRB's position, it is nonetheless likely that, given the NLRB's broad authority, its decision to pursue this case could have a far-reaching effect on how far employers can safely go in enacting social media, blogging, and internet policies. The NLRB's complaint could also have the effect of greatly limiting the extent to which employers can control employees' off-duty internet use – including in workplaces that do not have labor unions.
The NLRB has scheduled an administrative hearing for January 25, 2011. Until then, employers should carefully review their social media policies and watch for further updates. Based upon the NLRB’s position in this case, employers face an increased risk for disciplining employees who use social media to criticize their employer. Such discipline may result in an unfair labor practice charge. If you have questions about whether your company’s social media policy is at risk of violating the National Labor Relations Act or any other laws, please feel free to contact us.
*Jason Rossiter and Patrick J. Hoban, have extensive experience in all aspects of workplace law, including drafting and implementing social media policies for union and non-union employers. For more information about the use of a social media policy, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
