Social Media Minefield

Employers wondering how far they legally can go in monitoring employees' social media activity should be cautious now, keeping an eye on both the National Labor Relations Board and proposed legislation in statehouses and Congress, says Steven W. Suflas, a labor and employment partner with Ballard Spahr LLP and managing partner of its New Jersey office.

Suflas gave two presentations about social media law at last month's 8th Annual Labor and Employment Law Advanced Practices Symposium in Las Vegas, one about NLRB cases and the other about drafting policies that meet all legal obligations. "There's little doubt in my mind that with the way the NLRB is now applying the traditional rules of labor law to social media, I don't know that there's any employer anywhere that has a policy that's currently compliant, as far as the NLRB is concerned," he said during an April 9 interview.

"The most important thing is actually a broader issue. In a nonunion workplace, it's very easy for an employer to forget that any time two employees or more are acting together, raising issues about terms of employment [or] workplace standards, it's protected by the National Labor Relations Act," he said. "The protection goes so far as to cover complaints about co-workers, complaints about supervisors -- a lot of what many employers think of as simple bellyaching. But if it's about conduct that the employees believe is affecting their terms and conditions of employment, that falls under the category of protected concerted activity under the National Labor Relations Act.

"It's very hard to draw the bright line because when you read the NLRB's latest pronouncements, they're frankly internally inconsistent in terms of what they're finding to be protected concerted activity and what they're finding not to be. But I think the bright line rule of thumb is that if it's more than one [employee], it's protected, or it's arguably protected. Or even if it's one, if the one is engaging in conduct that the NLRB could claim was trying to drum up support among others, then that's protected, as well."

The labor board's general counsel has said the board is watching social media cases closely. What Suflas and other employment lawyers see is the board trying to apply labor rules that have been developed in industrial workplaces for 75 years to social media –- such as saying if a worker's highly critical post on Facebook were instead on a picket sign, it would be protected activity. "But, boy, that's a very different context with a very different audience," Suflas said. "That's one of the management frustrations with what the labor board is doing."

Citing a New Jersey case from 2009, he said employers run the risk of violating the Stored Communications Act if they demand social media passwords from job applicants in order to read what they're posting. "I think you're going to see a lot of legislation [to bar that practice]," both in statehouses and in Congress, Suflas said.

Given what he called the "surprising politicization" of everything being issued by the labor board, he said he expects it to be very pro-employee in finding actions to be protected and in invalidating employers' policies. Employers may want to wait for a few years to see federal courts of appeals act on these cases, Suflas said. "I think the best advice is, right now the law is developing in a way that's very counterintuitive. And if an intelligent business person or an intelligent HR person thinks they've come up with the right answer, they'd better check."

He's scheduled to speak about recent NLRB decisions and enforcement policy on April 19 in Philadelphia at the Pennsylvania Bar Institute's 18th Annual Employment Law Institute.

Posted by Jerry Laws on Apr 10, 2012