As a labor and employment mediator and arbitrator, I have been alternatingly intrigued and concerned about recent NLRB guidelines and ALJ rulings concerning use of and limitations on the use of social media. See, e.g., Aug. 18, 2011 NLRB Office of General Counsel Report
(discussing 14 cases social media/employment cases investigated in 2011); Hispanics United of Buffalo, Inc., NLRBALJ, No. 3-CA--27872; and Karl Knauz Motors, Inc., NLRBALJ, No. 13-CA-46452.These NLRB developments are intriguing because social media is so hip and now, and ubiquitous, and its use is only going to spread and grow in the future. Also, it is undeniable that social media can, although does not necessarily, implicate concerted activity for mutual gain or benefit.
The NLRB developments are concerning because any clear and firm guidelines tend to be rather elusive, and they are therefore bound to be widely misunderstood and misinterpreted unless and until their are better clarified.
Susy Hassan does a good job of summarizing and clarifying the little bit we do know in Regulating Employee Social Media Use, ABA's GP Solo, Sep./Oct. 2012. She distills and summarizes the following points:
- use of social media may constitute protected concerted activity where the employee discusses terms and conditions of employment "in a manner that is meant to induce or further group action;
- this is particularly true where the social media statements "grow out of an earlier discussion about terms and conditions of employment among co-workers;"
- but the "object of inducing group action need not be express;"
- a social media statement is not likely to constitute concerted activity where it falls more in the nature of "an individual complaint about working conditions specific to the employee and is not directed to co-workers or meant to induce group action;"
- employee comments that are "maliciously false" are not protected concerted activity, although that standard is unclear and likely very high;
- "offensive or inappropriate comments about an employer's clients are also unlikely to be protected," although that is again an unclear standard;
- the employer will only be liable for violating rights of concerted action "where it is established that the employer in fact knew of the 'concerted nature of the activity;' " and
- social media policies will be found invalid where the language is so over-broad or vague/subjective as to "effectively prohibit employees from engaging in protected activity," such as by prohibiting "inappropriate discussions" about the company or management, or stating "no one should be disrespectful" or "injure[] the image or reputation" of the employer.
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