HR Management & Compliance

NLRB Really Roils the Water Around Social Media

We knew social media was going to be a big part of 2011’s HR landscape, but the NLRB has just upped the ante considerably. It says that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page, because the posting was “concerted activity.”

The complaint also alleges that the company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy.

Since most employers with policies covering the Internet and social networking sites do try to restrict employees’ ability to disparage the company, or use the company name, this case will be very closely watched.

Here’s what happened: When asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation from her union. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee.

The employee was suspended and later terminated for her Facebook postings and because such postings violated the company’s internet policies.

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Protected Concerted Activity

An NLRB investigation found that the employee’s Facebook postings constituted “protected concerted activity,” and that the company’s blogging and internet posting policy contained unlawful provisions. The provisions included one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.

In the NLRB’s eyes, such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity. A hearing on the case is scheduled for January 25, 2011.

What to Do

Every employer will want to stay tuned on this one. Certainly before terminating employees over what they do on social networks, consult with your attorney.

Of course, the NLRB challenge is not the only legal danger posed by social media, says attorney Thomas Deer, a featured speaker at BLR’s National Employment Law Update held recently in Las Vegas. Deer is a shareholder in the Chicago office of law firm Ogletree, Deakins, Nash, Smoak & Stewart PC.

Deer says that the issues are primarily the following:

  • Employee’s improper disclosure of information
  • Social media and restrictive covenants
  • Harm to a third person by an employee’s posting
  • Violating the law, inadvertently or otherwise
  • Using Cyber information in employment decisions.

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Employee’s Improper Disclosure of Information

In order to perform their jobs, at least some employees must be entrusted with the “crown jewels” of the company.  For that reason, almost every employer has a policy regarding the employee’s duty to keep information that it deems important confidential.

What might be confidential can range from who your customers are to the details of your dealings with those customers, or such diverse information as the principal contacts for a customer to detailed pricing information.

Websites targeted towards business networking, such as LinkedIn and MeettheBoss, are especially problematic when it comes to the disclosure of information.  Although these sites can be extremely effective in helping employees develop business connections and communicate with potential clients, that ability to quickly network with hundreds of contacts can become a problem for employers.

Most jurisdictions throughout the country (even California, which virtually bans restrictive covenants) recognize an employer’s interest in keeping certain information confidential.

When an employee signs a reasonable restrictive covenant, most jurisdictions will enforce it, but the question of what online behavior may violate that covenant has yet to be answered.

If, for example, the employer’s client list is considered confidential, just having a client as a “connection” on a social networking site could compromise that secrecy.

That sort of disclosure is especially damaging because most jurisdictions require that for information to be protectable, the employer must take reasonable steps to protect it.  An employer could undermine the effectiveness of its covenants if it has encouraged its employee to network with clients online or facilitated their ability to do so without taking steps to monitor or control those activities.

In tomorrow’s Advisor, more of Deer’s suggestions for dealing with social media, and an introduction to the one-stop solution for HR challenges—

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