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January 24 2012

Policing Social Media May Create Problems for Employers

By: Kimberly M. Large

By: Kimberly M. Large

Social media necessarily gives rise to a host of legal issues, from privacy concerns to ethical implications to potential criminal and civil liability. Communications on Facebook might even violate a no-contact order, or could have implications at trial if there are contacts between judges, lawyers or jurors. Lawyers frequently use social media as a source of information in discovery, but some jurisdictions have attempted to impose boundaries on those investigations. Employers, in particular, need to be aware of protected speech considerations with respect to their employees’ use of social media.

The National Labor Relations Board (“NLRB”), an independent Federal agency that was created to enforce the National Labor Relations Act, has taken an interest when employers discipline employees for their acts on social media. In a September 2, 2011 opinion, Hispanics United of Buffalo, Inc., 2011 WL 3894520 (ALJ Decision 2011), an Administrative Law Judge found that HUB (a nonprofit agency) “discriminatorily discharged employees” in response to their posts on Facebook. In that case, on a Saturday while at home, an employee wrote on her Facebook page a criticism of a coworker’s comments that “we don’t help our clients enough.” Other employees responded to the post. The criticized coworker complained about the five employees to the nonprofit agency’s director, who promptly fired the five. The Administrative Law Judge found that the discriminatees’ discussions about criticisms of their job performance were protected under the Act as concerted activity, regardless of “whether the employees…brought their concerns to management before they were fired, or [whether] they intended to take further action, or [whether] they were not attempting to change any of their working conditions.” As the Administrative Law Judge stated, “employees have a protected right to discuss matters affecting their employment amongst themselves.” Despite HUB’s claim that the posts violated its policy on harassment, the Administrative Law Judge found that HUB failed to establish that the discriminatees violated any of its policies or rules. As a result, HUB was required to offer them reinstatement and backpay, among other things.

The NLRB has investigated a number of other cases involving the use of social media and employers’ related policies, but most have not progressed beyond the investigation or complaint stage. While this area of the law is still developing, it is clearly the recent position of the NLRB’s enforcement wing that social media is the contemporary equivalent of a lunch-room or water-cooler chat among employees. As a result, social media dialogue will generally be protected if the discussion arguably relates to wages, hours of work, benefits or other terms and conditions of employment. There are still occasions, however, when an employee’s use of social media to discuss the employer gives rise to an employer’s right to take action. An employer should consult with counsel regarding the wording of its employment policies regarding social media as well as any surveillance implications.