Want to know exactly what the government is targeting when it comes to employer social media (SM) policies? The U.S. Chamber just released a new study that analyzes 129 SM-related NLRB cases. Two Categories Employers are getting themselves in trouble in two basic ways: (1) overbroad policies restricting employee SM use and (2) employee discipline based on SM usage. In fact, the NLRB's General Counsel issued a memo earlier this year directing NLRB offices to submit cases involving "employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter." Overbroad Policies What kind of SM policies can get you in trouble with the NLRB? Those that restrict: discussion of wages, investigations and discipline or disparagement of the employer or its management. The law is fairly undeveloped at this point, but suffice it to say that the NLRB takes a verrrrry broad view of each of these categories. SM-related Discipline What kind of SM-related discipline does the NLRB target? Conduct that is: "protected concerted activity" under the law or discovered by the employer using unlawful surveillance, interrogation or threats. What exactly is "protected concerted activity" in the SM realm? Basically, the NLRB defines it as online discussion by more than one employee that's in any way tied to working conditions, wages or other terms and conditions of employment. To its credit, the NLRB has refused to protect some activity, including: A newspaper reporter's tweet that said: "You stay homicidal, Tucson. See Star Net for the bloody deets." An employee's Facebook post expressing a desire for the employer's building to collapse on members of management during an earthquake. A statement suggesting that health care employees might "withhold care if they were personally offended by the patients." "Mere griping" by an individual (as opposed to complaints by a group). Non-union Employers, Too If your company isn't unionized does that mean you can ignore the NLRB? Nope. The National Labor Relations Act (NLRA) isn't limited to unionized employers. In fact, the Chamber's study found that "a significant percentage of cases in our survey involved non-union employers with no union activity." Want More? You can access the Chamber's entire detailed analysis here. Enjoy.
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