News Column

Social Media Complicating Employee Rights Issues

August 5, 2013

The "explosion" of social media has complicated the contentious and often-vague realm of employee rights, according to employment and labor attorney John Chindlund.

Speaking at a legal briefing series presented by The Employers Council, Chindlund, a former attorney with the National Labor Relations Board (NLRB), said social media matters are among "some pretty hot issues in the last year or so" before the NLRB. He cautioned employers against having any work rule that would "reasonably tend to chill employees" in the exercise of their rights listed under Section 7 of the National Labor Relations Act.

"It's not just social media rules," he said. "It's all kinds of rules that employers may promulgate that have the effect of chilling an employee in the exercise of his or her Section 7 rights. Now, social media gets a lot of play because everybody's doing it. So rules about social media are a hot topic, but there are other rules, and every rule that an employer has should be examined to see whether or not it is overly broad, whether it has the potential to chill these rights."

Chindlund noted that the social media world keeps growing and changing, leading to expanded challenges for employers. "I guess today it's these things," he said of a list that included Facebook, Twitter, blogs, MySpace, YouTube, LinkedIn and Tumblr. "Tomorrow there will be more added to the list. It's an explosion these days of media and the ability of people to communicate," he said.

But predicting how the NLRB will rule on matters can be tricky. He cited an example of a salesman at a BMW dealership who posted on Facebook his complaints about the dealership "being cheap," in Chindlund's description, by offering visitors potato chips, cookies, apples, oranges and - even worse - hot dogs during the dealership's public unveiling of a new BMW model because the salesman believed it damaged the dealership's image.

That same salesman also posted on Facebook photos and his thoughts about an incident at a Land Rover dealership owned by the same company. At the Land Rover site, a 13-year-old boy got into the driver's seat and drove a vehicle over his father's foot and into a pond.

The salesman was fired, and he took issue because he believed his comments about the BMW affair were within his rights because the company's cheap ways had implications on his compensation and the compensation of other salespeople. Meanwhile, the company contended he was fired because of the Land Rover post.

Ultimately, the NLRB ruled that the BMW event post was protected activity under the National Labor Relations Act but the Land Rover-related post was not, and thus his firing was deemed proper.

Chindlund agreed with an audience member who surmised that the NLRB basically is saying that employees have the right to criticize and complain and be negative about their bosses, their pay and vacation policies on social media. The audience member said supervisors cannot believe that it's OK for employees "to be so whiny" and make the issues public.

"It's one of the negative aspects, I guess, of all the social media stuff," Chindlund said. "It does cause turmoil between employees and employers. You're right, it's hard to understand after all these years where this [social media] hasn't been in existence."

The Employers Council provided documents encouraging companies to review their social media policies to see if they need revision. It cautioned against immediate discipline for a worker found posting negative comments about coworkers, supervisors or their company on a social media site. Instead, it cautioned, companies should consult an attorney "as these situations require a careful factual and legal analysis."

Source: Copyright 'Enterprise, The (UT)' 2013. Distributed by MCT Information Services