Recent months have seen a flurry of commentary and government activity when it comes to the intersection between an employee’s social media activity and a company’s employment-related decisions. In October 2010, that intersection was in the spotlight for the first time, as the National Labor Relations Board (NLRB) stood as crossing guard to regulate employer decisions and conduct in the social media context. An administrative complaint was filed at that time by the NLRB after a Connecticut ambulance company terminated the employment of an employee who had posted negative comments about a supervisor on Facebook. That case settled a few months later, but the floodgates were open.
So what are the issues? In the movie The Social Network, Justin Timberlake’s character aptly said: “We used to live on farms, then in cities. Now we live on the Internet.” That is the new reality today, and the impact is felt in today’s workplace. Statistics show that employers are monitoring and relying on social media use by their employees (potential and current) in increasing numbers.
The second issue at play in this area involves, not decisions being made about a particular employee, but the company’s general workplace policies. The NLRB has also been looking at social media policies created by employers to determine whether the policies are overbroad and impermissibly vague, such that the policy tends to chill employees in the exercise of their rights under the law. This issue rests on whether you have articulated protectable business interests in a narrowly tailored way.