Last night, I had the opportunity to speak on a panel on social media & employment law for the Connecticut Bar Association and the Connecticut Employment Lawyers Association. (My thanks to both groups for the invitation).
It was an enjoyable event. We talked about seeking social media evidence in discovery, the impact of GINA and the ADA on social media usage, and about attorneys need to really educate clients about the use of social media, particularly if they are a party to a lawsuit.
But I’ll be honest. I was most interested to hear what NLRB Regional Director Jonathan Kreisberg had to say. After all, it was his office that brought the so-called "Facebook Firing" case (which seems a misnomer because there are numerous such cases now) against AMR.
And he didn’t disappoint. There is much to write about but I’m going to focus on just two items in today’s post. (More tomorrow).
First, he indicated that the NLRB General Counsel had authorized offices to begin to bring complaints that challenge the Register-Guard decision. (For a full background on the case, see my December 2007 post here.) That case held that an employer could restrict employees from using company e-mail for non-job-related solicitations. Kreisberg indicated that the case was ripe to be overturned before the new NLRB board and that this was an issue to watch in the upcoming months (though a final court decision could take significantly longer).
This could have significant ramifications for employers not simply on e-mail, but also for social media usage as well. Could the NLRB come out with a decision that allows employees to use company-owned computers to solicit on Facebook during work time? We’ll see.
Second, he emphasized that the AMR case (which settled) is, in his view, not very different from other traditional cases which allow employees to engage in "protected concerted activity", particularly off-site and outside work hours. He suggested that the "protection" that employees receive is exceedingly broad outside the workplace. He went on to say that even "name-calling" would get some protections and that the NLRB took the position that the employee’s comments here fell within the type of comments that are otherwise protected.
But there is a caveat and a limit to the NLRB’s reach. First, if an employee uses social media with people OTHER than co-workers, that actions may not be protected. Second, while the NLRB takes the view that this covers employees (unionized or not) that may potentially be covered by the NLRA, it would not apply to management-level employees. Thus, the manager who tweets that he hates the working conditions may not get the protection that the NLRB wants to give to lower-level employees
In tomorrow’s post, I’ll discuss personnel policies and how some language you might have in your employee handbook could be objectionable to the NLRB.