Labor Disputes Arising out of Social Media

As the dramatic growth of social media continues to transform the manner in which we all interact with each other, prudent employers must consider traditional labor law principles when implementing workplace social media policies. The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace.

In December 2009, the board's Division of Advice issued an advice memorandum addressing whether an employer's social media policy promulgated by Sears Holdings Corp. violated §8(a)(1) of the National Labor Relations Act. Although advice memorandums do not constitute formal adjudication or binding precedent, they often provide important insight.

Among the "Prohibited Subjects" listed in the policy at issue were confidential or proprietary information, intellectual property, explicit sexual references and, most critical to the issue before the division, "[d]isparagement of company's ... executive leadership, employees [or] strategy."

Relying on the framework set forth by the Bush board in Lutheran Heritage Village -- Livonia, 343 NLRB 646 (2004), the Division of Advice opined that the Sears Holdings social media policy did not violate the act: "While the ban on '[d]isparagement of company's ... executive leadership, employees, [or] strategy ... .' could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct. The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7."

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Source: law.com
By: Seth Borden