by Mark F. Kowal Esq.

As our use of social media continues to explode, employers often find themselves in a difficult predicament when they become aware of negative or controversial comments made by an employee on social media outlets such as Facebook or Twitter. Employers, often times without a policy regarding employee use of social outlets, use their own discretion when determining whether comments made by an employee through a social media outlet are grounds for suspension, discipline, or termination.

Under Section 7 of the National Labor Relations Act ("NLRA") employees, both unionized and non-unionized, have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." These "activities" protect employees engaging in communication regarding wages and working conditions. Section 7 protects traditional face-to-face communication, as well as communication over the Internet and social media sites. In contrast to traditional means of communication, however, when employees use social media they reach a much larger audience almost instantaneously, thereby making it more difficult for employers determine the limits of acceptable employee communication and to limit potentially damaging and inappropriate information from being widely disseminated.

Recently, in Hispanics United of Buffalo, Inc. v. Carlos Ortiz, the National Labor Relations Board ("NLRB") held that off-hours complaints by employees about their working conditions on Facebook were protected by Section 7 of the NLRA. The holding in Ortiz is important because for the first time, employers have a general understanding of what is, and what is not, acceptable social media communication. See Hispanics United of Buffalo, Inc. v. Carlos Ortiz, Case 3-CA-27872.

The Ortiz decision can assist employers drafting social media policies. Employers must recognize the practical, economic, and legal implications of an insufficient or overly restrictive social media policy. Because employers must be aware the protections afforded to employees through the NLRA, careful determination of the contents of their social media policy is essential. Once an employer has decided to draft a social media policy, or update an existing policy, the following issues should be addressed: 1) policies should be specific, not overly broad, and cannot prevent employees from exercising their Section 7 rights under the NLRA; 2) policies should include language that carves out discussions in social media forums protected under the NLRA; 3) employers should implement or update the policy in a manner consistent with prevailing employee policies within the company so that Section 7 rights are preserved; 4) employers should review the content and context of postings, tweets or blogs made by employees (whenever possible) to determine if the content of the posting concerns terms or conditions of employment, relates to other issues, or seeks to involve other employees in discussions regarding conditions of employment; 5) employers should determine if the post is merely a personal grievance and/or whether the responses posted are "emotional support" or a statement about employment conditions; and 6) employers should remain current on NLRB rulings to ensure compliance with the NLRB’s current position on social media policies.

A properly drafted social media policy may assist in safeguarding an employers’ business and limit its exposure to potential litigation. However, when drafting and/or updating a social media policy employers would be wise to insure that their efforts are in harmony with protecting the Section 7 rights of their employees.

Mark F. Kowal, Esq., is a Member of Stark & Stark’s Employment Group.

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