by Stephen D. Erf, Heather Egan Sussman, Christopher Scheithauer and Sabrina E. Dunlap

The law is not new – it’s just being applied to our newest forms of communication:  Twitter, Facebook and others.  Even the legal framework is relatively straightforward: Section 7 of the National Labor Relations Act (NLRA) protects “concerted activities,” which include circumstances where employees seek to “initiate or induce” group action for “mutual aid or protection.” In today’s workplace, activities such as blogging, or posting messages on social networking websites, can be considered concerted activity, and unless the activity falls within one of the exceptions to the NLRA’s protections (e.g., confidentiality breaches, extreme disloyalty, etc.), the law limits an employer’s control over what employees may write and post. 

In one recent case, the National Labor Relations Board (Board) accused American Medical Response of Connecticut Inc. (AMR) of violating Section 7 when it terminated an employee for allegedly criticizing her boss on Facebook. In its complaint against AMR, the union argued that the company had been interfering with, restraining and coercing employees in exercising their protected rights under Section 7 of the NLRA. The parties reached a settlement on the eve of trial, which required AMR to clarify and narrow its policy.

Even more recently, the Board’s Manhattan office has announced plans to file a complaint against Thompson Reuters over its Twitter policy. In 2010, an employee reportedly tweeted in response to a management inquiry, “One way to make this the best place to work is to deal honestly with [union] members.” The Board claims the company then improperly disciplined her pursuant to the Twitter policy by chastising her for making the statement. 

While we will have to wait for the complaint to see exactly what the Board takes issue with (and the company denies the allegations), this case involves a union, so it is easier for an employer to see the potential for NLRA landmines in that workplace.  But what many employers do not realize is that Section 7 applies equally to nonunionized workforces. 

In the wake of these NLRB complaints, what does this mean for all U.S. employers?  If you have not already done so, you should be reviewing your social media policy:

• You CAN prohibit employee’s use of social media during work time.
• You CANNOT include a blanket prohibition on critical comments.
• You CAN prohibit disparaging comments about company products or services.
• You CANNOT ominously threaten sanctions or termination for activities that could arguably be protected.
• You CAN take a tone that focuses more on using good judgment and common sense.     

In addition, an overly broad or vague policy alone may violate the NLRA, so you should consider taking steps now to narrow and clarify your policy to avoid becoming the next Board target.