The emergence of social media, from Facebook to Myspace and Linkedin to Twitter—much like the earlier evolution of email, IM, and web 2.0—have changed the way people communicate, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones and other portable internet data generators such as iPads, and even internet hotspots incorporated into motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing.
In the first case of its kind, the National Labor Relations Board (Labor Board or NLRB) issued a complaint against an employer, American Medical Response of Connecticut (AMR), for the suspension and firing of an employee who posted negative comments about her supervisor on her Facebook page. The federal agency alleged that the employer retaliated against the terminated employee for her postings and for requesting the presence of her union representative at an investigatory interview that led to discipline. Most importantly, the Labor Board maintained that the employer’s rules on blogging and internet posting, which included social media use, standards of conduct relating to discussing co-workers and superiors, and solicitation and distribution, were overbroad, interfering with employees’ right to engage in concerted activities for mutual aid and protection under section 7 of the National Labor Relations Act (NLRA). The NLRB, as the federal agency that enforces the statutory rights of all employees covered by the NLRA—not just those who belong to unions—signaled that it is ready to prosecute companies with policies that unduly interfere with employee communication about work matters such as wages, hours, and working conditions, even on social media. The AMR case puts employers on notice that rules affecting employee communication, including the use of email and social media during nonwork time, should be reviewed to ensure that the rules do not violate the NLRA. This article outlines tips for employers and employees to stay within the boundaries of labor law. . .