The Best Defense is a Good Offense: Proactive social media policies and what they can do for you By Len Brignac


Despite the fact that the number of social media cases have increased in the past years, most employers do not have policies governing their employees’ use of social media. Many users of Facebook and Twitter firmly believe that the employer has no right to control any comments, photographs or other use of the employee’s private account. On the other hand, trigger-happy employers believe they can fire employees based on any negative information that an employee posts on private accounts. As a result of these misconceptions, both are finding themselves in difficult and unwanted legal situations.

Employment termination based on certain critical comments by employees may violate current National Labor Relations Act (“NLRA”) as enforced by the National Labor Relations Board (NLRB). For example, the NLRB became involved in a dispute between an employer who reprimanded an employee who criticized management on Twitter. The NLRB contacted the employer and advised that the employee had the right to engage in “concerted protected activity” with co-workers with the goal of improving working conditions, and the employer is prohibited from limiting these employee rights.

The NLRB has taken a more aggressive stance with respect to social media policies and have reviewed disciplinary actions taken against employees who criticize the employer through social media. In February 2011 the NLRB settled a complaint against an employer for having an alleged overly broad social media policy under which the employer disciplined an employee for the employee’s critical comments against a supervisor.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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