Law's stance on social media fluid, firms told

NLRB rules are topic for Toledo forum

1/28/2012

Increasing use of social media by workers has become a big headache for employers because federal rules governing acceptable or protected employee speech on online sites such as Facebook and Twitter are constantly evolving with each new ruling by the National Labor Relations Board, a local labor lawyer said.

"Some employers say, 'I'm not affected because we don't have a union.' But union or nonunion, it doesn't matter," said James Yates, a lawyer with the Toledo office of Eastman & Smith. "It has everything to do with you if you're disciplining or terminating employees for things they're saying online."

He discussed social media and labor law as well as other issues involving the federal labor board in a presentation geared to employers Friday at the Toledo Regional Chamber of Commerce.

He said in the last five months, new rulings have made employers rethink social media rules.

What has emerged, he said, is a two-part test for employers who discipline employees for online comments: Do the comments address working conditions, and do they involve other employees?

"A purely personal gripe is not protected," Mr. Yates said. But if comments are about working conditions and are shared with other workers, it could be "concerted activity," which is legal. "If the employee has Facebook friends that are co-workers, and someone does the 'Like' thing on Facebook, is that 'concerted?' It might be."

Labor law experts buzzed in September when an NLRB administrative law judge ruled that five workers fired for Facebook remarks bashing job performance and staffing levels were engaged in protected "concerted" speech under the National Labor Relations Act. The judge ordered them reinstated with back pay.

Mr. Yates said that as social media sites grow, many employers are rushing to adopt policies on worker online activity. But, he warned, "You can't take a social media policy off the shelf and just plug it in."

Changing rules suggest there will be far fewer limits on what employees can do online, he said.

For example, a policy against making disparaging remarks online about the company "is illegal. It's too general and you need terms of conditions," Mr. Yates said.

Employers still can discipline workers for vulgar language, harassing statements, and online threats. And posts disclosing proprietary information or legally confidential data, such as health information, aren't protected. But what may be illegal today could be legal tomorrow, he said.

Contact Jon Chavez at: jchavez@theblade.com or 419-724-6128.