Fire over Facebook? A Primer on Protected Social Media Activity in the Workplace and Best Practice Guide for Managing Employee Social Media Use

    November 16, 2013

    Social media use in the workplace continues to increase. According to an August 2012 national corporate survey, 75 percent of employees access social media on the job from their workplace computers or personal mobile devices at least once a day. Their primary purpose for using social media at work is to connect with other employees and online friends. With so many employees using social media in the workplace, it should come as no surprise that employers are increasingly disciplining employees for their social media activity. A 2010 Proofpoint survey revealed that at least 20 percent of companies had disciplined an employee for social media activity. Due to the widespread expansion of workplace social media use over the past three years, that number has undoubtedly increased.

    In response to increased employee social media activity and discipline, many companies have implemented policies to govern use of social media by employees. Social media policies generally set forth work rules that prohibit certain forms of social media activity and content, and proscribe various requirements concerning confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government.

    Over the past two years, employer disciplinary actions for employee social media use and employer social media policies have come under the scrutiny of the National Labor Relations Board (“NLRB”). The NLRB is the government authority that enforces the National Labor Relations Act (“NLRA”), which is designed to protect the rights of most private-sector employees, unionized or not, to join together in order to improve their wages, working conditions, and other terms of employment.

    Fire over Facebook simplifies key concepts of labor and employment law as it relates to social media activity, analyzes how those concepts are applied to situations involving employee social media activity, categorizes lawful and unlawful social media policies, and provides best practices for drafting, implementing, and enforcing an NLRA-compliant social media policy.  Fire over Facebook:

    • Identifies employers and employees subject to the NLRA;
    • Defines key labor and employment law concepts of protected activity and concerted activity as applied to social media activity;
    • Provides actual examples of protected and unprotected social media activity;
    • Demonstrate how protected social media activity can lose protection under the NLRA;
    • Illustrates how an employer’s disciplinary action in response to certain social media activity violates the NLRA;
    • Categorizes work rules and social media policies as lawful or unlawful as determined by the NLRB;
    • Discusses consequences companies face for a violating the NLRA; and
    • Offers best practices for drafting, implementing, and enforcing an NLRA-compliant social media policy.

    I had the pleasure of co-authoring this book with my good friend Heather Melick, Esq. at Luper Neidenthal & Logan in Columbus, Ohio. Heather and I previously authored the Social Media Guide for Lawyers along with our colleagues at the Meritas Leadership Institute. Fire Over Facebook? was published for the Association of Corporate Counsel and sponsored by Meritas Law Firms Worldwide. You can request a copy of the book at http://5.254.114.227/~smlo/books/.


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