Pokes, tweets and the law Social networking raises key workplace questions

By Adam Kamp

The Daily Record Newswire

Everyone knew that social networking was too prevalent not to have some impact on the workplace and labor laws. The only question was when.

"I've been doing CLEs for years on emerging issues in employment law," says Douglas Micko, with Schaefer Law Firm in Minneapolis, "and every year one of the topics to be discussed is social networking. And every year, I've been able to say that this has no impact whatsoever on practice."

"But," Micko adds, "we're finally starting to see things change."

Over the last few months, the National Labor Relations Board has had to confront in a number of different forms what seems to be a simple question: Is an employee's comment on Facebook or Twitter a conversation, or is it an isolated statement?

On Facebook, for example, a user might have the option to send a private message that is quite clearly a discussion between two people but might also post a status update that on its face does not seem to be directed at any one person in particular.

And why should an employer -- or the NLRB -- care which is which? Under the National Labor Relations Act, an employer has great latitude to discipline an employee for isolated statements, but under Section 7 discussions between workers about the terms and conditions of their employment are a form of protected speech, so their right to form a collective is not diminished.

The question of whether speech is protected is easy to ask but difficult to clearly answer, and the early decisions have not been reassuring. As Roseville attorney Marylee Abrams noted, "The rules are getting clearer, but the cases have not been bright-line decisions; instead, they've been very careful and fact-specific."

Thus, whether an employee can be fired for a statement made on Facebook has turned on some unexpected points.

In one recent case, a worker's post complaining about her supervisor was protected speech, not because of the forum she used but in large part because the original message asked for the opinions of her co-workers about the behavior. In another case, an Illinois car salesman did not think that the food offered at a sales event was good enough to bring in customers, and said as much in a Facebook status update where he worried about his commissions, to which other employees replied. That too was protected speech, though his comments about a dealership at which he did not work were not.

Gregg Corwin, a Twin Cities labor attorney, believes that the nature of the field will require that these fact-specific decisions will continue. "It's good news for lawyers, but it's difficult to hear: The law isn't bright-line, and that's not going to change," Corwin said. "In the technology field, what is private and public, or what is work-related and what is personal, all get mixed together."

Further complicating the issue is the potential for unlawful surveillance. Management, Corwin explained, is not permitted to watch employee activity in order to keep an eye out for potential unionizing. Now that Facebook discussions can be considered concerted activity, being a part of those conversations can lead a supervisor into danger.

"The big problem with social networking is how to follow these communications without invading privacy," Corwin said. "The courts are not going to countenance complete monitoring of social networking." The supervisor who follows a subordinate's funny Twitter feed or sends a friend request from a co-worker on Facebook might later be accused of unlawfully keeping an eye on the employees.

Policy suggestions

In some ways, Abrams suggests, the fixes to an employer's policies are simple. "We have suggested that our clients do have Facebook policies, and we want to make sure that they aren't overly broad," Abrams said. "So we're making sure they include this sentence: 'This social media policy is not designed to hinder, restrict or compromise an employee's rights under Section 7 of the NLRA.'"

Since by Jan. 31 the new posting rule promulgated by the NLRB will require employees' rights to free discussion of the workplace, such language should provide sufficient notice to the employees.

Abrams also advises that supervisors not be friends with subordinates on social network sites, a stance with which Corwin agrees. "In order to read an employee's social networking discussions, there would have to be some prior reason to believe that unprotected conversations, such as denouncing the employer, is taking place."

Indeed, the main issue might not be the policies themselves but how they are enforced. As Micko notes, a conversation between employees might be concerted activity, but at the same time it might be harassment or defamation, and the real task for an employer will be to determine which is occurring and how best to act. Because there are no easy lines to follow, attorneys should advise employers to be very careful in how to proceed when statements made on social media come to their attention.

In the end, the issue is not that the law is changing, but that social media provide more opportunities for employers to make potentially costly mistakes. "This is just the technological street corner," Abrams said. "It's just that you can touch many more people along the way."

Micko concurred. "The law has yet to catch up with the notion that social media are really just another place to have a conversation. But we're finally starting to see some changes percolating."

Published: Wed, Oct 26, 2011

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