The NLRB and Legal Considerations of Social Media - Expio Consulting

The NLRB and Legal Considerations for Employer’s Social Media Policies

andyroller Social Media

European Sports Cars, Hot Dogs, and What To Do If An Employee Posts Embarrassing Images on Social Media

It can be awkward. An employee catches the attention of Social Media and the effects of a not-so-good-for-PR post makes its way all the way to the top, potentially putting said employee on the chopping block. The story below reflects a reality that is becoming more and more common in the digital age.

Here are two quick key points from the NLRB that will help employers be smarter in writing their Social Media Policies.

The bottom line: employers need to carefully consider a few key areas in order to avoid legal issues.

(1)
Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

(2)
An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Two precedents from 2012


Here are two precedents from a real case that happened in 2012:
“In the first such decision, issued on September 28, 2012, the Board found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership, which did not involve fellow employees, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired. The Board agreed with the Administrative Law Judge that the salesman was fired solely for the photos he posted of a Land Rover incident, which was not concerted activity and so was not protected.

In the second decision, issued December 14, 2012, the Board found that it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to social media and found that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act.”

It’s crucial that businesses create smart Social Media Policies before a controversy takes place. Expio can help. Contact us today to learn about Social Media Policy Consultation.

You can also find more information at www.nlrb.gov