Firm Associates Joshua Knapp and Brett Pugach Pen Article Regarding Social Media Technology and Keeping Up with Social Media Legal Developments

Author: Joshua E. Knapp, Esq. and Brett M. Pugach, Esq. Read the article (pdf) On January 25, 2012, and on the heels of its initial social media report, the National Labor Relations Board (the “Board”)’s Acting General Counsel, Lafe Solomon, issued a second report on recent cases involving social media policies.  Citing recent examples of employers that disciplined employees under social media policies, and emphasizing pitfalls that can occur when the policies are far-reaching, the Board stressed the elements of a clear and effective social media policy. Under the National Labor Relations Act (the “Act”), restrictions on the use of social media forums, including Facebook, cannot unlawfully restrain an employee’s right to engage in concerted protected activity.  Thus, one Board Regional Director has recently stated that an employer violates Section 7 rights under the Act if it takes actions that would reasonably chill employees in exercising their rights.  For example, in a previous case, the court found that the Act protected an employee who clicked a Facebook “Like” button linked to an issue that dealt with employment terms and conditions.  In general, the Board will consider four factors in making its determination:  (1) the place of discussion, (2) the subject matter being discussed, (3) the nature of the employee’s comment, and (4) whether the comment was provoked by the employer.