Wednesday, November 10, 2010

Law firms advise employers about NLRB litigation over social media policies

Employment law firms are advising employer clients not to restrict employee free speech made off work (on home computers), since the National Labor Relations Board has sued American Medical Response of Hartford for overbroad social media policies that resulted in firing a medical technician for criticizing supervisors on Facebook.

I have a story Nov. 9 on the “BillBoushka” blog and there is a new story by Jenna Green at the National Law Journal, link here.
The NLRB says that the company policy amounted to limiting “water cooler” talk. Maybe so. But what is likely to come out in litigation is the difference between online postings that are directed to a limited audience (listservers and social media postings or even blog postings with certain privacy settings turned on) and blog or web postings open to “Everyone” and available to search engines. Job coaches tell people to be very careful about everything you say online, even with privacy settings on, even with cell phone text messages, because digital messages can be retransmitted and reposted by others. That’s also true. So there is a line to be drawn somewhere.

Another issue is that companies (especially media companies) sometimes have policies against personal and political activism. This would seem to apply mainly to journalists and may have FEC implications when partisanship is involved. But it can also effect personal online speech about controversial issues (rather than about specific stakeholders in a workplace). There could exist issues for people with direct reports, for people who make underwriting decisions, receive training bonuses (when agents), or for people sent to client companies to represent hiring companies (common in IT).

Another good question about social media policy would be how it relates to “don’t ask don’t tell” in the military.

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