Recent National Labor Relations Board (NLRB) decisions have made it clear that employees’ comments on social media sites may be protected activities. Consequently, it’s more important than ever for employers to have clear workplace social media policies and seek counsel before terminating employees who post unfavorable comments.
Employers, Employees and Social Media
A week doesn’t seem to go by without social media in the workplace making the news. Just this week an article in the New York Times drew a lot of attention by reporting on several NLRB decisions we shared with you in previous client alerts.
Postings May Be ‘Concerted Activity’
These decisions involve findings against Costco and other businesses for wrongfully terminating employees because of employees’ comments on Facebook and other social media. According to the NLRB, employees’ social media postings critical of their supervisors or their workplaces may generally be considered protected “concerted activity” when the communications may be construed as “collective bargaining or other mutual aid and protection.”
Many employers continue to be surprised that employee discipline may be subject to NLRB purview, even when there is no union in their workplace. The NLRB decisions address the propriety of the language in social media policies of Costco, Walmart and other businesses and provide necessary guidance for permissible language in social media policies.
A settlement late last year in the PhoneDog litigation also provides an important lesson for businesses that assign employees to develop companies’ social media sites. That case was settled without a final court ruling on who actually owned a Twitter account that an employee developed for his employer’s benefit and continued to use after separating from the company. In that case, the employer contended the roster of Twitter followers was akin to a client list and the account was company property. Under the settlement, the employee was allowed to maintain sole custody of the account, with the other terms of the settlement remaining confidential.
Clarity and Caution Needed
The case provides important guidance and instruction for employers about clearly specifying to employees that any social media accounts developed for the employers’ benefit belong to employers and not employees.
Other news reports continue to discuss how many large financial services organizations are prohibiting employees from accessing the Internet and social media sites from business computers in compliance with Financial Industry Regulatory Authority (FINRA) requirements that firms keep records of all business communications for three years.
Statutes have passed in California, Illinois and Maryland barring employers from requesting employees’ or job applicants’ passwords, and similar statutes are pending in other states, including New Jersey.
Conclusion
Now, more than ever, employers must develop an appropriately worded social media policy and consult with counsel when considering termination of an employee based upon a social media posting.
If you have questions about social media policies, or any other employment-related inquiries, please contact Julie Levinson Werner at 973-597-2550.
