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October 16, 2012 | Category: Corporate and Taxation

Regardless of your business or profession and whether or not you have union employees, if you are an employer, you should review your company’s internet and social media policies to determine whether they are susceptible to an allegation that the policy would reasonably tend to chill employees in an exercise of their rights to discuss wages, working conditions and unionization.

In a series of cases, the first of which was decided approximately one year ago, the National Labor Relations Board (“Board”) has stepped in upon complaints received by former or current employees, to argue that an employee’s criticism of their supervisors, co-workers or their employer on a social networking site are generally protected activities and that employers would be violating the law by punishing employees for such statements.

The first case on this subject matter took place one year ago when the Board filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company in any way on Facebook or other social media sites.  The Board took the position in this case, as well as in a number of cases filed over the past year that, under the National Labor Relations Act (“Act”), whether it takes place on Facebook or at the water cooler, if the employees are talking jointly about working conditions, which may include complaints or criticisms of supervisors, co-workers or their employer, they have a right to do that.

The Act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers, whether union or non-union, for discussing working conditions or unionization.  In the case of American Medical Response, the Board said their Facebook policy was overly broad and improperly limited employees’ rights to discuss working conditions among themselves.  Further, the Board took an issue with another company policy, which prohibited employees from making disparaging or discriminatory comments when discussing the company or the employee’s superiors and coworkers.

 Since the American Medical Response case approximately one year ago, there have been more than one dozen cases addressing employers’ social media policies and employee terminations due to Facebook or other social media postings.  With regard to employers’ social media policies, in several cases, the Board found such policies to be unlawfully over broad, as they could reasonably be construed to prohibit protected employee conduct.  With regard to the cases involving employee terminations, in four cases involving an employee’s use of Facebook, the Board found that the employees were engaged in a “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees.  In five other cases involving Facebook or Twitter postings, the Board found that the activity was not protected.

 The bottom line – be forewarned.  You need to review your company’s social media policies and determine if they could reasonably be construed to prohibit employee protected conduct, such as a discussion of wages and working conditions.  To the extent such policies can reasonably be construed to prohibit such protected conduct, they will be deemed to be illegal.  

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