Monday, September 26, 2011

Employers Must Be Careful In Regulating Employees' Use of Social Media

There are interesting article in today's Chicago Tribune and Washington Post regarding companies' efforts to limit what their employees say about work online without running afoul of the law. According to the articles (,0,6993316.story) (, confusion about what workers can or can't post has led to a surge of more than 100 complaints at the National Labor Relations Board (most within the past year) and created uncertainty for businesses about how far their social media policies can go. According to the articles, in one case, a car salesman was fired after going on Facebook to complain that his BMW dealership served overcooked hot dogs, stale buns and other cheap food instead of nicer fare at an event to roll out a posh new car model. The NLRB's enforcement office found the comments were legally protected because the salesman was expressing concerns about the terms and conditions of his job, frustrations he had earlier shared in person with other employees. The article notes that the NLRB's attorneys reached the opposite conclusion in the case of a Wal-Mart employee who went on Facebook to complain about management "tyranny" and used an off-color Spanish word to refer to a female assistant manager. In that matter, the board's attorneys said the postings were "an individual gripe" rather than an effort to discuss work conditions with co-workers and declined to take action against Wal-Mart. The articles goes on to note that the number of filings of such complaints increased greatly last year after the NLRB sided with a Connecticut woman fired from an ambulance company after she went on Facebook to criticize her boss. That case settled earlier this year, with the company agreeing to change its blogging and Internet policy that had banned workers from discussing the company over the Internet.

The articles are timely, as employees' use of social media and the limits on employers ability to regulate such use are developing areas of law. Social media comes into play in all aspects of workplace law, including in the area of employee benefits. For instance, many employers and insurance companies have denied (and/or attempted to deny) employees' claims for long term disability benefits or claimed need for family and medial leave where employees claimed an inability to work due to severe depression but subsequently posted pictures of themselves dancing, vacationing and and smiling on Facebook (i.e., the employees were yucking it up while they were out on disability or medical leave allegedly due to severe depression). It will be interesting to see how the law develops around these issues. Employers and employees should stay tuned for more.