Start-Up Launchpad Blog

Surprise! Social Media Continues to Get More Complicated - August 29, 2011

Jo Ellen Whitney

Jo Ellen Whitney, Employment and Health LawEmployers struggle with the idea of social media in the workplace and how to use this media for appropriate internal and external publicity purposes while managing confidentiality and trade secret concerns as well as the morale of employees who may be subject to bullying or inappropriate treatment on the web.

Recently, many employers have expressed concern about a prior National Labor Relations Board (NLRB) case which indicated that an employee who had made "water cooler comments" and complaints about the workplace could not be terminated for violation of the internal workplace rules regarding social media postings.The NLRB position was that this might have been an impediment to her ability to organize under the National Labor Relations Act (NLRA) and was a potential violation of the Act. Plaintiff's attorneys have been pointing to this case, even though the case itself had never been decided and was settled prior to any hearing, as evidence that Facebook is a sacrosanct area and employees can say whatever they want.

The NLRB has pulled back from this position and indicated that many job related complaints and statements on Facebook are actionable by the employer. The NLRB has recently issued three memorandums to the regional offices including J.T.'s Porch Saloon and Eatery ltd., NLRB division of advice No. 13-CA-466897711; Martin House, NLRB Division of Advice No. 34-CA-12950719; and Walmart, NLRB Division of Advice No . 17-CA-2503071911 on this matter.  In each of these instances, the employees made complaints about their workplace and their employer, but the NLRB, through its general counsel, determined that these were simply complaints and that they did not rise to the level of activity under the NLRA.  NLRB general counsel grouped the distinctions into three primary categories. 

The first that the postings related to work not working conditions.  In one instance, the employee made uncomplimentary comments about patients she was serving which ultimately resulted in her termination. This was determined to be a work issue, not a working condition. If the NLRB spent more time with the Office of Civil Rights, they might have decided it was also a HIPPA issue. 

Second, there is no indication in each of these cases that the activity grew out of an attempt to participate in "concerted acts," or third, grew out of prior discussions regarding workplace conditions and concerns. Concerted activity is frequently viewed as something that occurs when employees have been speaking with each other about systemic problems.  The "grow out" exception relates to workplace conditions and concerns regarding workplace acts. Simple complaints, as occurred in the Wal-mart case where an employee complained, with a significant amount of profanity, on his Facebook posting that he had been "chewed out" for misplacing stock and a number of other items, wasn't deemed to be concerted activity in an attempt to change workplace conditions for the employee or group as a whole. It was simply the standard behavior that we see on most Facebook pages, which is "my boss is a jerk". 

While these statements from general counsel take away some of the sting that was created by the prior NLRB case, it is important to note that you need to make a distinction between the types of comments that are truly worth your time and attention as an employer and just the general background noise which is most of what your employees produce as Internet chatter.  In general, employees are not going to have an enormous following. They are not Charlie Sheen, Britney Spears, or anybody else that is going to generate thousands of followers.  Any damage they do is going to be relatively localized to a few people who are willing to pay attention to them and overlook their spelling errors. In general, it is not worth getting worked up over the "my boss is a jerk" type of comment.  There is so much of it, (along with dancing cat pictures) that you would spend a significant amount of time attempting to enforce any Internet standard that doesn't allow an employee to say, "I don't like my job".  However, any comments that relate to patient or resident care, trade secret information, information relating to harassment, bullying or other inappropriate behaviors in the workplace or similar items which amount to potential legal violations should be investigated and resolved by you as the employer.


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