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Social Media Challenging Employers, NLRB Report Reveals

September 01, 2011

The National Labor Relations Board (NLRB)’s review of 14 cases involving the dismissal of employees over posts made on social media sites showed just how much technology has outpaced current labor laws.

The NLRB, which enforces the National Labor Relations Act (NLRA), was split evenly on whether current labor laws protected the employees named in the cases, one of which involved a highline auto dealership. The results of those investigations were detailed in an August 18 report issued by the board’s  acting general counsel, Lafe Solomon. Jeanette Slepian Esq., COO of Compli, said the report reveals just how much social media is challenging both employers and regulators.

“Social media issues are arising, as the Internet has become an ubiquitous channel of communication,” she said. “Statutes have not kept pace with the evolution of technology, so regulatory bodies, such as the NLRB, are creating case law to govern emerging issues.”

Each case reviewed was submitted by regional offices to the NLRB’s Division of Advice in Washington, D.C. In four cases involving employees’ use of Facebook, the division found that employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the division found that the activity was not protected.

In the case involving the highline dealership, the dealer dismissed a salesman after he posted photographs and critical commentary on his Facebook page about a sales event held at the store. The salesman and his coworkers had expressed concerns over the refreshments management wanted to offer customers during a prior meeting, as they felt the inexpensive food and beverages would send the wrong message to their clients and would negatively impact their sales and commissions.

While at the event, the employee took photographs and told his coworkers that he would post them on Facebook. The Division of Advice determined that his actions were meant to express the sentiment of the group and that the Facebook activity was a direct result of the earlier meeting between the sales staff and management.

“He was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when the salespeople raised their concerns at the staff meeting,” the report read. “Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. Since the employees worked entirely on commission, they were concerned about the impact the employer’s choice of refreshments would have on sales, and therefore, their commissions.”

According to Chris Hoffman, a partner at the law firm Fisher & Phillips, dealers need to adopt written policies that specifically cover social media to avoid similar problems.

“Your dealership’s policies have to be so clear to make sure you’re telling employees what they can and can’t do,” Hoffman, who served as a guest presenter during a recent Webinar hosted by Compli, said. “And then educate employees regarding the legal risk of inappropriate postings. The rule of thumb we also talk about is, you have to treat everything as if it’s on the record, that it’s open for public consumption.”

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