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Is Your Social Media Policy Overbroad?

Added by Hawley Troxell in Articles & Publications, Business Law, Employment Law on June 1, 2011

The social media explosion has changed the way people communicate with one another. With more than 500 million active users on Facebook, over 100 million users on LinkedIn, and close to 200 million accounts on Twitter, employers should not turn a blind eye to employee use of social media. Many employers have adopted policies establishing guidelines for responsible use of social media. The purpose of such social media policies is to protect the employer’s reputation, productivity, and property and to avoid lawsuits. However, the law is constantly evolving in the area of employer regulation of social media. Thus, employers should frequently review their social media policies to ensure legal compliance.

One critical issue an employer should consider is whether its social media policy is overbroad. As illustrated by the original “Facebook Firing” case, the National Labor Relations Board (NLRB) is taking a more aggressive stance against overbroad social media policies. On October 27, 2010, the NLRB filed a complaint against American Medical Response of Connecticut (AMR) after AMR fired an employee for posting negative comments about her supervisor on Facebook. The NLRB determined the employee’s Facebook discussions were protected concerted activity under the National Labor Relations Act (NLRA).

Employers generally understand that the NLRA protects the rights of employees to unionize; however, many are unaware that Section 7 of the NLRA protects the rights of employees to engage in “concerted activities for the purpose of . . . other mutual aid or protection,” even when the employees are not unionized. This includes discussions about wages, hours, and working conditions. Pursuant to Section 8 of the NLRA, it is considered an unfair labor practice for employers “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7.”

The AMR case began when an employee was questioned by a supervisor about a customer complaint concerning the employee’s work performance. The employee requested union representation, which she was denied. The employee went home that night and responded by posting negative comments about her supervisor on Facebook. Her posts generated supportive comments from her coworkers, to which the employee responded with additional negative comments about her supervisor. AMR suspended the employee for her Facebook posts and then terminated her for violating the company’s social media policy contained in the employee handbook, which provided in pertinent part:

Blogging and Internet Posting Policy:

  • Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting;
  • Employees are prohibited from making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

The NLRB complaint alleged that the discharge violated federal labor law because the employee was engaged in protected activity when she posted comments about her supervisor and responded to further comments from her coworkers. The NLRB complaint also alleged that AMR maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during her questioning shortly before the employee posted the negative comments on her Facebook page.

The AMR case settled in February of 2011 when AMR agreed to revise its social media policy to ensure it does not restrict employees from discussing wages, hours and working conditions with coworkers while not at work. AMR also agreed that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation.

The NLRB has continued to file complaints against employers arising out of their efforts to control employee use of social media. On May 9, 2010, the NLRB filed a complaint against the Hispanics United of Buffalo (“Hispanics United”), a nonprofit that provides social services to low-income clients, alleging Hispanics United unlawfully discharged five employees that took to Facebook to criticize working conditions. In that case, an employee posted a comment on her Facebook page regarding a coworker’s allegation that the employees did not do enough to help the organization’s clients. The post was made prior to a meeting with management on working conditions. The post generated responses from other employees, who defended their job performance and criticized working conditions. Hispanics United learned about the posts and discharged the five employees who participated, claiming that their comments constituted harassment of the coworker mentioned in the original post. The NLRB complaint alleges that the employees’ Facebook discussion was protected concerted activity under Section 7 of the NLRA because it involved coworkers discussing their terms and conditions of their employment, including job performance and staffing levels. A hearing before an administrative law judge has been rescheduled for July 13, 2011.

Most recently, on May 20, 2011, the NLRB filed a complaint against Knauz BMW, a Chicago-area BMW dealership, claiming Knauz BMW unlawfully terminated an employee for posting photos and comments on Facebook that were critical of the dealership. The employee, a car salesman, and his coworkers were unhappy with the fact that the dealership served hotdogs and bottled water at a customer promotional event. The salesmen were concerned that the quality of food and beverages could have a negative effect on their sales and commissions. Following the event, the employee posted photos and commentary on his Facebook page critical of the food and beverage being offered to customers. Other employees had access to his Facebook page. The following week, management asked the employee to remove the posts, which he immediately did, but was nevertheless fired. The NLRB claims that the Facebook posting was protected concerted activity within the meaning of Section 7 of the NLRA because it involved discussion among employees about the terms and conditions of employment. The case is scheduled for hearing on July 21, 2011.

Some lessons for employers from the string of Facebook Firing cases are: 1.) Ensure your social media policy is not overly broad as to prohibit or chill concerted activity, and 2.) Ensure you are not disciplining or terminating an employee for concerted activity over social media.

If you would like us to review your social media policy for legal compliance, or if your business does not currently have a social media policy and you would like us to assist in drafting one, please call 208.344.6000 or email a member of our Business group.