• 27
  • October
    2011

As millions of people now use social media websites like Facebook and Twitter, employees and employers are attempting to understand what is legally permissible regarding their use and regulation of social media in the employment context.

Increasing use of social media has led to a rise in investigations by the National Labor Relations Board (NLRB) of employers' social media policies and employees' potential violations of those rules. Disagreement, confusion or ignorance concerning employees' rights to make negative statements online about their workplaces has resulted in more than 100 complaints to the NLRB, among other employment disputes.

In general, federal law protects employees from repercussions for engaging in "protected concerted activity" by talking with colleagues about their jobs or working conditions. These communications and complaints are generally protected whether they occur at the office, out of the office or online, as long as they are shared with co-workers.

However, employers are not restricted from taking action against employees who make disparaging comments online or elsewhere when they are not shared with other employees or as part of concerted activity. Two cases addressed by the NLRB demonstrate this distinction.

In one case, an employee complained on Facebook about the food served at a work event. The NLRB found his complaints were protected because the employee had shared them previously with other employees at the event.

In the other case, though, an employee was suspended for one day and disqualified from seeking a promotion for one year for complaining about management on Facebook because the complaints were "an individual gripe" and not a protected effort to discuss job terms and conditions with co-workers.

These and other cases before the NLRB reveal the challenges employers face when creating, implementing and enforcing social media policies. To ensure they are properly protected and in compliance with the law, employers should seek the advice of an experienced business lawyer regarding their social media policies.