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Monday, October 31, 2011

NLRB Issues Report on Employee Social Media Cases

Local government employers, like other bosses, are struggling with critical social media posts by employees.  Can an employer terminate or discipline a worker for complaining about his or her boss or company on Facebook?  Will social media policies protect an employer?  The answers to these questions are not yet clear, although a report recently issued by the National Labor Relations Board (NLRB) will provide some guidance.

In a recent report issued by the acting general counsel of the NLRB, the NLRB reviewed 14 cases involving investigations into the use of social media by employees.  A copy of the report can be found on the NLRB's website.  A summary of a few of these cases follows:

In one case, the NLRB ruled that a nonprofit employer unlawfully discharged five employees who had posted comments on Facebook relating to allegations of poor job performance that had been previously expressed by one of their coworkers.  The workers were found to be engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow co-workers on Facebook.  The NLRB cited the Meyers ruling that an activity is concerted when an employee acts "with or on the authority of other employees, and not solely by and on behalf of the employee himself."  In this case, the discussion was initiated by one worker in an appeal to her coworkers on the issue of job performance, resulting in a "conversation" on Facebok among coworkers about job performance.  The NLRB ruled similarly in three other cases included in the report.

In another case, however, the NLRB ruled that a reporter's Twitter postings did not involve protected concerted activity.  Encouraged by his employer, a reporter opened a Twitter account and began posting news stories.  A week after the employee posted a tweet critical of the newspaper's copy editors, the newspaper informed the employee he was prohibited from airing his grievances or commenting about the newspaper on social media.  The reporter continued to tweet, including posts about homicides in the City and a post that criticized an area television station. The newspaper terminated the reporter based on his refusal to refrain from critical comments that could damage the goodwill of the newspaper.  The NLRB found that the employee's conduct was not protected and concerted because it (1) did not relate to the conditions of employment and (2) did not seek to involve other employees on issues related to employment.  The NLRB issued a similar ruling in a case involving a bartender who posted a Facebook message critical of the employer's tipping policy, finding the posts mere "gripes" that are not protected.

The NLRB also ruled that several employer social media policies were overbroad where the policies could be construed to prohibit protected conduct.

What does this mean for local government employers?  First, employers must be cautious in disciplining or terminating employees for critical posts on social media sites.  An employer should ask itself whether  the posts are "protected and concerted activity" or merely constitute "gripes" about an employer that are not protected?  Second, an employer should review its social media policy to make sure it is not overbroad in prohibiting protected activities.  Finally, an employer should be careful not to enforce social media policies in an arbitrary or discriminatory manner.


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