October 22, 2020

What employees can legally say on Facebook—and get away with

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thumbs up and downBy Rebekah Mintzer, From Corporate Counsel

Facebook had more than 1 billion daily active users around the world as of September. That’s a lot of timeline posts and status updates, and many involve the workplace. This leaves employers in a difficult spot as they try to figure out what types of employee online speech get legal protections.

The answer isn’t always simple. At times the National Labor Relations Board, which has taken on the role of arbiter of social media and employment issues, has ruled that posts by employees on Facebook and other social media that seem like fireable offenses are really, in fact, “protected concerted activity,” covered by Section 7 of the National Labor Relations Act.

Section 7 is supposed to protect employees—whether unionized or not—from being fired or disciplined for talking about organizing as well as about pay and working conditions. But the definition of “protected concerted activity” as it applies to social media has expanded in recent years. “The scope of cases where the board will find protected concerted activity, it’s just like blowing up a helium balloon. It’ll keep going and going and going,” says Donald Schroeder, a partner at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

Take the recent Pier Sixty case, in which an employee took to Facebook to call his supervisor a “nasty f***er” and wrote: “F**k his mother and his entire family!!!” He was fired. But the board ruled he should not have lost his job, in part because his comments came in the context of an upcoming union election at the workplace, and because vulgar talk had happened at the company before without disciplinary action.

“It’s not just ‘my company doesn’t pay enough’ or ‘my supervisors are unfair,’ says , a partner at , of the sort of social media speech getting protections. “Employees have gotten away with saying horrible things that many employers would see as defamatory, but the board doesn’t see it like that.”

In another case that eventually got to the U.S. Court of Appeals for the Second Circuit, Triple Play Sports Bar & Grille v. NLRB, the board extended the reach of the even further: to the Facebook “thumbs up“ button. “The NLRB held that ‘liking’ something is protected concerted activity—not even writing a post—but actually ‘liking’ a post that someone else wrote as a complaint about their employer,” says Howard Wexler, an associate at Seyfarth Shaw.

There are still some limits to what an employee can write on Facebook or other social media sites. Sharing trade secrets or sabotaging the employer as well as making discriminatory statements online are still largely forbidden, even when the labor board gets involved.

Dan Schwartz, a partner at Day Pitney, says it’s “absolutely critical” that employers tell workers what’s allowed and what’s not. “The most important thing from the employer’s perspective,” he says, “is to provide employees clear notice of what is or is not acceptable on social media and do it through written policies that are available on the company intranet or published in the employee handbook.”

For more on this story go to: http://www.corpcounsel.com/id=1202745453319/What-Employees-Can-Legally-Say-on-Facebookmdashand-Get-Away-With#ixzz3v3xWQcGd

 

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