LL&D Law
Legal Issues in Social Media

by Shannon Davies
11/3/2011 3:09:00 PM

     Social media law is a quickly growing area of employment law.  A number of questions are beginning to emerge, including whether an employer can prohibit its employees from posting issues and concerns the employees are facing at work on Facebook, Twitter or other social networking sites. The simple answer to the question is yes, sometimes. An employer can, under certain limited circumstances, impose some restrictions on its employees’ postings.

     One of the most interesting things about the newly burgeoning area of social media law is what rule-making body is defining the parameters of this issue. The National Labor Relations Board, normally associated with unions, is leading the charge.  The NLRB is usually thought to deal solely with unions. However, the NLRB covers private employers as well, especially when the NLRB determines a private employer is violating an employee’s right to communicate over terms and conditions of employment. The NLRB calls this communication “protected concerted activity”, and means even non-union employers cannot prohibit a single employee from trying to induce group action, seeking to bring employee complaints to the employer’s attention in addition to certain other activities.
     The NLRB also protects groups of union and non-union employees who join in groups of two or more to express concerns over workplace conditions. Groups engaged in concerted activity are allowed to collectively discuss issues over pay and safety concerns. 
     In the old days, employees were likely to engage in protected concerted activity at the water cooler or over lunch.  Communications flowed from one person to another in smaller groups. Today, communication over social media has the potential to go viral taking what was once a more intimate discussion or dispute with an employer into a potential public relations nightmare. Employers have serious concerns over how to manage these issues.
     The law is in its infancy, putting employers and employees in an uncomfortable position. Recently, the NLRB issued a report detailing its findings of fourteen social media cases. The report included a number of things an employer cannot do and very little an employer can do, although a properly tailored social media policy is still allowed.  The NLRB generally does not allow an employer to discipline an employee who takes his complaints about the employer on line. It generally does not allow the employer to prohibit the employee from discussing the employer, its employees or competitors. An employer cannot, as a matter of course, prohibit an employee from using the company logo. Social media policies cannot be general in nature. The policy must be specific and narrowly tailored such that it does not infringe on protected concerted activity.
     In the next installment on social media law, we will discuss the question, “So, what can I put in my company social media policy.” The short answer is probably not a whole lot. 


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