Frankfurt Kurnit Klein & Selz: NLRB Puts Social Media Policies Under Scrutiny

While an innovative social media campaign can be a great boon to business, corporate America is becoming increasingly aware of the inherent dangers of social media as well. In particular, employees' statements about employers on personal Facebook, Twitter and other social media accounts have the potential to cause a company a PR nightmare, or even subject a company to litigation. Thus, more and more companies are developing internal social media policies in an attempt to control this uncontrollable media. And while having such a policy is generally a good idea, a recent National Labor Relations Board (NLRB) case highlights that great care must be taken in crafting it.

In what labor officials and lawyers view as a ground-breaking case, the NLRB has accused American Medical Response of Connecticut, Inc. (AMRI), an ambulance company, of illegally firing an employee after she criticized her supervisor on her Facebook page. According to the complaint, employers that punish workers for such statements may violate the National Labor Relations Act (NLRA), which protects the rights of workers to communicate with each other about wages, hours, and other employment conditions -- even if those workers are not unionized.

The NLRB charged that AMRI's "Blogging and Internet Posting Policy," which prohibits employees from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors, violates the employees' right to engage in "protected concerted activity."

The case suggests the NLRB may pursue even private sector, non-union companies that have overly broad social network policies -- even in the absence of an unlawful termination. But what exactly is an "overly broad" social networking policy? Previous NLRB opinions suggest that not all social media posts that criticize management are protected -- only those which "involve protected concerted activity or union activity." The challenge for employers lies in interpreting what "protected concerted activity" is, formulating appropriate policies, and then correctly applying those policies to employees' online statements.

At a minimum, employers may have to consider revising their social media policies to carve out "protected concerted activity or union activity." They should also take care, when applying these policies, to analyze the employees' statements to ensure they do not touch upon labor disputes or other protected issues. Further, it makes sense for employers to obtain the input of their human resources departments when developing social media policies, to better protect against the possibility of creating an unduly aggressive policy.

If you have any questions about your own social media policy or other advertising/marketing issues, please contact Terri Seligman at 212.826.5580 or tseligman@fkks.com (or any other member of the Frankfurt Kurnit Advertising Group). For questions about the case or other employment issues, please contact Wendy Stryker at 212.705.4838 or wstryker@fkks.com or Lia N. Brooks at 212.705.4817 or lbrooks@fkks.com (or any member of the Frankfurt Kurnit Executive Compensation and Employment Group).

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