The Dangers of Overbroad Social Media Policies: Lessons Learned from Twitter and Facebook

The role of social media in the workplace has taken center stage over the past couple months as the National Labor Relations Board has issued numerous complaints against union and non-union companies alleging violations of Section 7 of the National Labor Relations Act. The complaints clearly signal the NLRB's disapproval of overbroad social media policies as well as the disapproval of adverse actions taken against employees who are engaging in "protected concerted activity" and discussing their working conditions, wages, or hours on social networks such as Twitter and Facebook.

The following are some of the cases making the headlines:

Karl Knauz Motors - On Friday May 20, 2011, a complaint was issued against the luxury car dealer after it terminated an employee when he posted on his Facebook page concerns about the handling of a sales event that could impact the company's employees' earnings.

Hispanics United of Buffalo - The complaint alleges that the nonprofit unlawfully discharged five employees after the employees criticized their working conditions on Facebook. According to the NLRB's website "the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels."

Thomson Reuters Corp. - A reporter was disciplined for sending a tweet stating, "One way to make this the best place to work is to deal honestly with Guild members." In this case, a settlement was reached before a complaint was issued, as Thomson Reuters and the Newspaper Guild of New York tentatively agreed on a three-year contract and agreed to settle the issues related to the members' use of Twitter. This would have been the first NLRB complaint involving Twitter. 

Lee Enterprises, Inc. d/b/a Arizona Daily Star - The NLRB Associate General Counsel's Division of Advice concluded that a termination by the regional newspaper was lawful. A reporter who covered the crime and public safety beat posted numerous tweets that were determined to not involve protected concerted activity. Rather, the tweets were described in the Advice Memorandum as "inappropriate and offensive."  This case shows that companies do not necessarily have their hands tied when employees engage in unprofessional and inappropriate conduct online that does not relate or touch on protected concerted activity.  The Memorandum explained that "[t]he Board has consistently held that 'an employer's imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act.'  However, the Board has found discipline pursuant to an overbroad rule to be unlawful only where the underlying conduct involved Section 7 activity."

Build.com - The web-based home improvement retailer settled a claim relating to the termination of a non-union employee who was terminated after she posted comments about her company on Facebook. 

American Medical Response of Connecticut - A settlement was reached in this case regarding an employee who was terminated after posting negative comments about her supervisor on Facebook. The ambulance company agreed to, among other things, revise its overly broad policies to make clear they do not restrict employees from discussing their wages and other conditions of employment.

The inherent tension with social media and the workplace is that, on one hand, companies are trying to protect themselves and their customers against employees who are making false and derogatory statements, disclosing trade secrets or other confidential and proprietary information, and spending their work hours and the company resources posting comments online. On the other hand, companies are not permitted to infringe on an employee's right to discuss the terms and conditions of his or her employment with or on the authority of other employees. Overbroad social media policies that restrict employees from discussing the terms and conditions of their employment- whether they are union members or not - are prohibited.

One step companies can take to help limit their exposure and liability is to implement carefully-drafted social media policies that define the parameters of what is and is not permitted conduct on social networking sites. The social media policies oftentimes interplay with the traditional codes of conduct that already exist and define concepts that may be unique to the ever-changing and evolving electronic world.

Read more articles on employment law issues at Employment and the Law, a blog by Ashley Kasarjian

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