by Krista N.
Hardwick & Clay D. Creps
An employer's right to monitor and restrict what its employees say about the
company on websites such as Facebook, Twitter and personal blogs may have
drastically changed. The National Labor Relations Board ("NLRB") has
just surprisingly found that a Connecticut employer violated the National Labor
Relations Act when it fired one of its employees allegedly because she violated
the company's social networking policy. The employee - Dawnmarie Souza -
publicly ridiculed her supervisor on Facebook in posts that included
obscenities and name-calling. Souza's Facebook posts also accused the company
of having psychiatric patients working as supervisors. Several of Souza's
coworkers allegedly read her Facebook posts and followed up with their own
negative comments about the supervisor and the company.
In a surprising turn of events given the nature of the comments, the NLRB
concluded that these employees' internet discussions were "protected
concerted activity" for which they could not be disciplined or fired, akin
to a gathering of employees at the company water cooler to discuss working
conditions. The NLRB further concluded that parts of the employer's internet
policy were unlawful, including the provision that prohibited employees from
making disparaging remarks about the company or supervisors online. The case is
scheduled to go to a hearing before an Administrative Law Judge on January 25,
2011, but may not be decided for months.
Does your company have a policy that restricts employees from posting comments
on the internet that demean the company, managers, supervisors or fellow
employees? If not, you are in the minority. Until now, any competent employment
attorney or human resources professional you asked would have recommended
implementing an internet and social networking policy for several reasons.
Employers have faced liability for harassment and discrimination based on
comments their employees posted online that were viewed by other employees.
Critical comments made by employees on the internet may also negatively affect
the company's reputation. Threats of injury or sabotage have been made about
supervisors and co-workers on social networking sites. And, there is a risk
that employees will reveal confidential and proprietary information when
posting about the company online. A well-drafted internet and social networking
policy helps to protect companies from these and other issues.
Practically speaking, the parameters of what employers may and may not prohibit
in terms of employee internet communications is up in the air until the
Administrative Law Judge rules next year. In the meantime, however, employers
are well advised to have their internet and social networking policies reviewed
by an employment attorney to ensure that they are compliant with the recent
NLRB ruling. Employers should also consult with an experienced employment attorney
before taking adverse action against an employee based on a violation of the
internet and social networking policy.
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