March 2011 - Minnesota
In the first legal action of its kind, a local Region of the National Labor Relations Board (NLRB) had recently sought to punish an employer for firing an employee because of the employee's postings on the social networking site Facebook. In what is likely to become more common as social networking continues to explode and become more integrated between work and person life, the matter is seen by companies, unions and attorneys as a test case for the NLRB's position that employers violate the law for disciplining employees for posting certain comments on social-networking sites. The NLRB's final determination of this issue, however, will have to wait as the government agency announced on February 7, 2011, that it has agreed to settle the matter with the company; or, perhaps more accurately, the company capitulated and agreed to the NLRB's restrictions on its monitoring, discipline and restrictions on employees' use of Facebook and other social media sites.
As many of you are aware, late last year a Regional Director for the NLRB issued a complaint against a medical-transportation company for firing an employee for posting critical remarks about her employer on the social-networking site Facebook. The Regional Director took the position that Facebook postings, and postings on social-networking sites in general, can be considered protected concerted activity under the National Labor Relations Act (NLRA). In particular, the Regional Director took aim at this employer because the social media and internet policy used to discipline the employee contained overly broad provisions, such as provisions prohibiting employees from making disparaging remarks when discussing the company or supervisors and from depicting the company "in any way" over the Internet without company permission.
Employers can be assured that the NLRB will be looking for similar scenarios where employers have broad social media policies and/or where the company has disciplined or terminated an employee for comments made about the workplace where terms or conditions of employment are involved. Therefore, an employer's internet and social medial policies should be carefully reviewed, and revised if necessary, by experienced labor counsel to ensure that the employer will not be the NLRB's next target. Further, because social-networking is the modern equivalent of water cooler discussions, employers are cautioned to thoroughly consider the content of any employee's social-networking or internet post before taking adverse action against them.
