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National Labor Relations Board Weighs in on Social Media

Q: What is social media?
A:
 Social media is the common name for interactive engagement with others on the Internet. Most commonly, social media refers to posts on Facebook, comments on profiles on such websites as Facebook, LinkedIn, and blogs (including blog entries), and tweets on Twitter.

Q: What is the National Labor Relations Board (NLRB)?
A: 
The NLRB is federal government agency tasked with enforcing the National Labor Relations Act (NLRA).  The NLRA is a set of laws that, among other things, grants certain rights to employees, such as the right to engage in “protected concerted activity” a legal term used to loosely describe actions taken by two or more individuals relating to the terms and conditions of their employment. For example, many employers have a rule prohibiting employees from discussing their wages with other employees. Since wages qualify as a term or condition of employment, however, the discussion of wages is a protected concerted activity. Therefore, an employer cannot lawfully prohibit employees from discussing wages.

Q: How does the NLRA apply to social media?
A:
 The rise in popularity of Facebook and Twitter has resulted in an unprecedented level of public discourse on employees’ terms and conditions of employment. Employees now frequently air their grievances publically on the Internet via social media to their friends and followers, whereas before such grievances were more likely to be discussed with others only over the phone or in person.

Q: Can an employer control what is said about its company?
A:
 Employers generally do not like employees to make public what employers consider private matters, and the lines are often blurred with respect to whether such shared information is confidential or proprietary. The NLRB has, however, taken the position that the NLRA protects employees who publically state that they do not like their job, their boss, their pay, their workplace, or their co-workers. According to the NLRB, these are all terms and conditions of employment. Although such comments may be protected concerted activity, they still may be libelous or slanderous, or they may violate employment agreements, expose trade secrets, or otherwise be unlawful.

Q: Can employers discipline or terminate employees for using social media to communicate?
A: 
No; employers cannot generally discipline or terminate employees for simply using social media, although employers can limit the time and place of such activity. For example, an employer can prohibit employees from using social media during working time. Discipline and termination may be proper for the inappropriate use of social media described above.

Q: Can employers enforce policies preventing employees from making disparaging remarks about the employer?
A:
 Many employee handbooks have policies stating that employees cannot make disparaging remarks about the employer. Until the proliferation of social media, these policies were routinely followed and rarely challenged, in part because there were fewer avenues of communication for venting grievances. Through social media, employees can now easily reach large audiences with their complaints, and employers are enforcing non-disparagement policies. Whether such enforcement withstands scrutiny from the NLRB and courts is yet to be decided.

Q: What is the NLRB doing to protect employee use of social media?
A:
 The NLRB is investigating allegations made by employees who claim to have suffered an adverse employment action (discipline, demotion, reassignment or termination) because they used social media to discuss the terms or conditions of their employment.

Q: What happens if the NLRB determines that an employee has been illegally disciplined or fired for using social media to discuss terms or conditions of employment?
A: 
The typical remedy for wrongfully disciplining, demoting, or reassigning an employee is to make that employee “whole.” For example, an employer might make the employee “whole” by removing the discipline from the employee’s personnel file or placing the employee back into the position held before the demotion or reassignment. Employees who are wrongfully terminated generally are offered reinstatement to their old positions. Of course, back pay is standard, as is posting a notice in the workplace reminding employees of their rights under the NLRA.

7/25/2011

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Matthew D. Austin.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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