SOCIAL MEDIA AND EMPLOYMENT: The emerging legal issue regarding social media usage and employee rights has led to new guidelines by the NLRB as to what is protected social media conduct.
In this day and age social networking is widespread and far reaching. A staggering number of this nation’s workforce is active on at least one social networking site. Because of the popularity of social networking and the potential for marketing to vast numbers of customers more and more businesses are taking out advertising space on such sites and/or developing pages inviting potential customers to make comments and share its content with others.
Considering the sheer volume of employees actively utilizing social media for posting random comments (some of which reflects the employee’s opinions regarding his or her employer) and the vast number of employers utilizing the same media for marketing and advertising, it was inevitable that the two parties would clash. This is evidenced by the rising number of employee terminations based on comments and/or pictures allegedly casting his or her employer in a negative light posted on such public forums.
The first Facebook firing case to come before the National Labor Relations Board was decided on September 2, 2011 by an Administrative Law Judge. In its decision, the judge mandated that the notice attached to the NLRB’s decision be posted for 60 consecutive days in conspicuous places on the employer’s premises. Additionally, the employer was ordered to post the notice electronically in whatever form it regularly communicates with its employees.
The following excerpt of the notice lists the employee’s rights with regards to social media conduct:
“FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected concerted activity, including discussing amongst yourselves your wages, hours and other terms and conditions of your employment, including criticisms by coworkers of your work performance.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.”
Hispanics United of Buffalo, Inc. v. Ortiz, (Sept. 2, 2011) Case No. 3-CA-27872.
Social media has permeated the workplace. The plethora of litigation it has produced and will continue to produce is staggering. The law must keep up with advancing technology and future rulings on social media usage will dictate how the courts will weigh the rights of employees against the rights of employers.
As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
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