James F. Mahoney, Attorney

Monitoring Employees' Use of Facebook

An update on the NLRB’s interpretation of “protected concerted activity” and how you can and can’t monitor employees' use of social media

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In our "Regulatory Roundup" presentation at the Arizona Trucking Association, we talked about the expected increase in regulatory efforts in areas of employment law, Workers’ Comp insurance, UIB, and the status of owner operators as independent contractors versus employees in all these areas. We're seeing anecdotal evidence of heightened regulatory intervention as agencies search for money. It's happening also as insurers search your pockets for additional premium after your policy ends.

Dawn Marie Souza, a union worker for a New Haven company, was fired in December 2009 after disagreements between her and her supervisor culminated in Ms. Souza posting negative remarks about her supervisor on her Ms Souza’s Facebook page.

The National Labor Relations Board reported recently that the Company would pay a settlement and also revise its “overly broad” rules to ensure it does not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, which presumably, is when the Facebook entries were made by Ms. Souza.

Internet postings are just one of the "protected concerted activities." The Company’s blogging and internet posting policies were unlawful said the NLRB, including one that prohibited employees from making disparaging remarks when discussing the company and another that prohibited employees from depicting the company in any way over the internet without company permission.

Remember, we also talked about checking on your rep and what to do when the union shows up? Well now you can see what your employees really think about you if you join Facebook.

April 2012 Update

The Acting General Counsel of the National Labor Relations Board reminds us that many of the provisions typically found in employee handbook social media policies are too broad and probably run afoul of the National Labor Relations Act.

For example, you can’t prohibit employees from making disparaging comments about your company, or prohibit conduct that could be considered insubordination or disrespectful, or prohibit all communications that could negatively impact your company’s reputation.

You can, however, validly prohibit employees from using social media to post comments about coworkers or supervisors that could reasonably be construed as vulgar, obscene or threatening, and you can prohibit using social media to make defamatory comments about the company, or causing harassment or implying company sabotage-type comments.