Last week the National Labor Relations Board launched a legal case asserting that employees have a right to free speech on Facebook. It announced that it had filed a complaint against an ambulance service that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company "in any way" on Facebook or other social media sites in which they post pictures of themselves.
According to the New York Times, Lafe Solomon, the board's acting general counsel, said, "This is a fairly straightforward case under the National Labor Relations Act - whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers - whether union or nonunion - for discussing working conditions or unionization. The labor board said the company's Facebook rule was "overly broad" and improperly limited employees' rights to discuss working conditions among themselves.
Moreover, the board faulted another company policy, one prohibiting employees from making "disparaging" or "discriminatory" "comments when discussing the company or the employee's superiors" and "co-workers."
The board's complaint prompted Morgan, Lewis & Bockius, a law firm with a large labor and employment practice representing hundreds of companies, to send a "lawflash" advisory on Monday to its clients, saying, "All private sector employers should take note," regardless "of whether their work force is represented by a union."
The firm added, "Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would 'reasonably tend to chill employees' " in the exercise of their rights to discuss wages, working conditions and unionization.
American Medical Response of Connecticut denied the labor board's allegations, saying they were without merit. "The employee in question was discharged based on multiple, serious complaints about her behavior," the company said in a statement. "The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law."
So, folks, what does this mean for our law firm social media policies? It certainly raises some interesting questions. Is social media the watercooler or is it something else? And if so, what is it? A permanent record that has the potential to be scrutinized by millions? Is it publishing: Like old school media where libel is a real concern?
There are some typical conditions included in law firm social media policies that may be impacted by this case sending us all into a tizzy.
Will this send us back to GO?Will we lock down all social media sites and services?Ban Facebook?
If this case wins and even if it only directly affects union workplaces, I'm pretty sure law firms will also want to revisit several policy points - just to be on the safe side. As innocent and full of common sense as the following language may seem, I've used them or seen them in law firm social media policies. With this case, policy statements like these may tip the balance between protecting the law firm brand and permitting free speech.
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