News Column

Social Media: What Can Workers Post?

Oct. 5, 2012

Jack Katzanek

man with laptop

The federal agency that rules on worker rights and labor-related disputes recently took another small step toward clarifying what someone can or can't say about an employer on a social media site.

However, the decision handed down last week by the National Labor Relations Board does not fully answer the complicated question of what an employee legally can post on a Facebook page or other digital discussion site, and whether this person's job can be taken away for posting it.

The case that was ruled on involves a salesman at a Lake Bluff, Ill., BMW dealership who actually posted two series of work-related photos on his own Facebook page. One series showed the dealership handing out hot dogs and bottles of water at a sales promotion, and the salesperson mocked his boss for being cheap with refreshments.

The second post made fun of the dealership after a vehicle was accidentally driven into an adjacent pond during a test drive.

The salesman was fired for the postings and filed charges with the labor board under the National Labor Relations Act, the 1935 law that allows workers to discuss their jobs and working conditions amongst themselves. A judge upheld the dismissal, and the labor board affirmed that decision.

The ruling essentially said the photos of the vehicle in a pond were a sarcastic poke at the employer that had nothing to do with workers' rights.

The labor board judge did say the photos of the hot dogs and water at the promotional event could have been legally protected because, if workers believed the owner's cheapness was affecting their commissions or other work conditions, they'd have the right to discuss it verbally or digitally.

"One of the things that some people don't get is that we only look at one aspect of what can be posted on Facebook," said Nancy Cleeland, a NLRB spokesperson. Cleeland added that the labor board is looking at several other social media-related cases and will probably issue decisions in the next few months.

Roger Crawford, a partner and an employment law specialist with the Riverside-based firm Best Best & Krieger, said that this case does not set any new precedents. But he pointed out that cases regarding the relatively new social media phenomenon are helping to clarify a law that has been around longer than most workers.

"The standard is not a new standard, which basically says that an employee can talk about the terms and conditions of his or her employment," Crawford said. "But, if no other employee is involved, and especially if it doesn't have to do with working conditions, then generally it's not protected."

Meanwhile, employers are grappling with their policies to adjust to social media, which has been difficult for some. Crawford said there have been several cases that bear watching.

One well-publicized case, which was settled early in 2011, involved a Connecticut employee of an ambulance company who was fired for posting negative comments about her boss on her Facebook page. Her lawsuit was settled out of court, meaning that there was no legal opinion that could be used as a precedent.

However, the settlement included an agreement that the company, American Medical Response, would change its "overly-broad rules" in its employee handbook.

That's a complex issue many employers are going through right now, said James Kuns, a senior consultant with The Employers Group, a human resources consulting firm. An employee's privacy rights must be balanced with a company's right to protect proprietary information. The issue of workplace protections makes it even more complicated, he said.

"A lot of them are up in the air about what they should do," Kuns said.

Source: (c)2012 The Press-Enterprise (Riverside, Calif.) Distributed by MCT Information Services

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