Social media platforms have greatly transformed personal interactions in the work environment. But the trend toward daily use of social networks, at work and elsewhere, has generated legal controversy as to what is protected worker activity and what is grounds for termination.
In 2010, the National Labor Relations Board (NLRB) filed a complaint against American Medical Response of Connecticut (AMR) for firing an employee who -- after being refused union representation following an incident at work -- posted a rant on her Facebook page insulting her supervisor. The NLRB alleged that the termination of the employee constituted an unfair labor practice, violating § 8(a)(1) and (3) of the National Labor Relations Act, on the theory that such action discourages membership in a labor organization. (See Complaint (No. 34-CA-12576), www.laborrelationstoday.com .)
Unfortunately, the AMR case provided relatively little clarity as to when the Board will enforce limits on employee social media conduct, as the parties entered into a settlement agreement, without a final opinion. Pursuant to the settlement, AMR revised its communication policies. The settlement, however, created no binding precedent. (See "Settlement Reached in Case Involving Discharge for Facebook Comments .")
In the Spring of 2011, the NLRB issued a series of additional complaints against employers based on social media policies, on the theory that such policies violate employee rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. In January 2012, the NLRB Acting General Counsel (AGC) released a report summarizing those recent social media cases.
The AGC's report underscored two main points concerning the NLRB counsel's views:
That employer policies should not be so broad as to prohibit activity protected by federal labor law, "such as the discussion of wages or working conditions among employees"; and
That an employee's comments on social media would not be protected when they involve "gripes not made in relation to group activity among employees." The 2012 report too provides only limited guidance for employers. The report emphasized that "these cases are extremely fact specific."
In May 2012, the NLRB provided some clarification when it issued a report in which the AGC detailed instances of employer social media policies it labeled "overbroad," and instances of when employer social media policies are valid and legal. According to the AGC, the key distinction in these social media cases is whether the employer policies "would reasonably be construed to chill the exercise of Section 7 rights in violation of the [National Labor Relations] Act."
The AGC provided advice for employers for constructing social media policies: According to the AGC, employers may enforce social media policies that contain clauses such as: warnings ("You are solely responsible for what you post online" or "Before creating online content, consider some of the risks and rewards that are involved"), and prohibitions of "plainly egregious conduct."
[Disclosure: The author is a partner in the New York City offices of Jones Day. Samuel Goldstein, a summer associate at Jones Day, assisted in the preparation of this article. The views expressed are solely those of the author, and should not be attributed to the author's firm or its clients.]
No, Kim, I think your "cautionary" predictions are very correct. I think the courts will leave the clarity to the future and leave us dangling in the social winds for the time being.
It again proves that we haven't kept pace with a digital world.
This is yet another topic on which we could use some clear guidance, either from legislators or the courts. Bet we're not going to get it. We'll have several years of somewhat conflicting positions and decisions -- unless the Supreme Court decides they want to hear about it. Or am I too negative?
Again, part of the problem is the changing cultural sensibilities of our modern age. See, for example, Kannenberg v. Labor & Industry Review Comm'n, No. 97-0224 (Wisconsin Ct. Appeals 1997), www.wicourts.gov (holding that repeated use of vulgar terms, including "F*** You," did not establish hostile work environment).
Perhaps Europeans aren't so crazy about wanting to be able to regulate the internet in such a way that anyone has a "right to delete" their internet history and remove their public mistakes from the digital record...
But a "right to privacy" on the internet won't stop the original stupidity of posting without thinking...
"much as a journalist should stick to the facts, the employee should also do likewise and not conjecture or add too much opinion so as not to jeopardize their continuing employment."
I think you are quite right, kq4ym. My use of the word "trash" was meant to convey that insults and salty language will probably not be tolerated by said company. So in order to make one's point, as you say, the matter should be kept as professional and to the point as possible. Thanks for the comment.
It should be ok to trash the company if the communication is on behalf of similarly affected employees. If, for example, the company is using unfair labor tactics, it should only be correct that an employee should be able to discuss the matter even if it makes the company look foolish. But, much as journalist should stick to the facts, the employee should also do likewise and not conjecture or add too much opinion so as not to jeopardize their continuing employment.
Interesting case reported in the NYT today. English footballer (soccer player) charged with a racial intimidation / harassment offense for on-field extreme "trash talk." Defense (in part) appears to be that the situation is different from "normal" talk. That same issue might arise with social media. Is there an objective (reasonable person) standard for what is defamatory / inappropriate in a posting, or a subjective (reasonable person in this situation) standard, or something else? Do junior high kids get a break, because they're all relatively immature? What about Marine Corps recruits (and others in "tough" professions)?
Agreed, the whole thing could be avoided if people were smart about what they said, but I'm just saying that if it does happen, the brand needs to respond in a way that matches its persona.
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A recent Michigan case -- Ahmed v. Finley's Mfg. Co. -- concerned the settlement of class action claims that "halal" products offered at fast food restaurants in Dearborn did not comply with Islamic dietary restrictions.
The United States has no single national privacy protection agency. Over the past 20 years, however, the Federal Trade Commission (FTC) has taken a leading role in education, outreach to consumer and industry groups, and enforcement in the area of privacy and data security. The FTC’s Division of Privacy and Identity Protection, within its Bureau of Consumer Protection, enforces several federal statutes, regarding “unfair or deceptive” practices, fair credit reporting, and confidentiality of financial information. Further, the FTC takes principal responsibility for enforcement of the Children’s Online Privacy Protection Act (COPPA), which aims to place parents in control over what information is collected from their young children online.
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M2M: Rise of the Machines? Not Yet David Weldon In the 1970 science fiction thriller Colossus: The Forbin Project, two giant supercomputers from the United States and Soviet Union secretly join forces to take control of the collective nuclear might of the two countries. In the film, the two machines discover each other's existence, communicate back-and-forth, share their collective data, and cut their human creators out of the process. It is the ultimate example of machine-to-machine communications, or M2M. CLICK FOR MORE
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