This morning, I was the moderator for a couple of panel discussions at a seminar sponsored by my Firm at the Four Seasons Hotel entitled “The Future of Social Media & The Law.” One of the panels addressed the next hot topics in social media and employment law, and, specifically, the anticipated government initiatives to regulate employers, drafting effective and realistic social media policies, and strategies for making employment-related decisions based on employee social media activity.
In addition to one of my Firm colleagues, David Barron, I was honored to have been able to get the NLRB’s Regional Director (Region 34), Mr. Jonathan B. Kreisberg, to participate in the panel discussion. Mr. Kreisberg is based out of the Hartford, Connecticut regional office, and has been at the forefront of the NLRB’s social media developments since the initial “Facebook firing” case back in October 2010. The discussion was lively and informative, and focused both on current developments in this area, as well as anticipated future “hot topics.” For those who were unable to attend this morning’s briefing, I hope you will consider attending our next one.
Employer Take Away: What should you as an employer take away from this development?
In addition to emphasizing that the NLRB has jurisdiction over union and non-union companies, Regional Director Kreisberg made several important points this morning that are worth highlighting:
(1) The NLRB continues to be focused on two areas: (i) quick-trigger adverse actions taken as a result of employee posts and other social media activity; and (ii) overbroad workplace policies. The issue comes down to whether an employee is appropriately discussing the terms and conditions of the workplace with co-workers, and whether the company’s policies tend to chill (expressly or impliedly) the rights of employees to engage in “protected concerted activity.”
(2) The NLRB looks for certain red flags when it comes to employment decisions. For example, whether adverse action is taken against activity that would otherwise be protected under the law if it had not been done through social media. Other red flags include policies that broadly prohibit employees from making “any derogatory comments about the company” or engaging in “any discussions about company information.”
(3) The NLRB will take into account the extent of any good faith investigations undertaken by a company before it took adverse action against an employee.
(4) Issues involving “Facebook friending”, like those surrounding “Facebook Firings”, are difficult to police, but equally as important to consider.
(5) Regional Director Kreisberg does not believe the NLRB’s new posting requirement (the effective date has just been pushed from November 14th to January 31st – more on that in my next blog post…) is an example of governmental activism. He also does not necessarily agree with the swirling controversy that has arisen, because the posting requirement simply obligates employers to advise of rights that employees always had, an obligation that exists as well in the posting requirements of similar laws. Regional Director Kreisberg is not able to confidently predict the likelihood of success in the pending challenge filed in South Carolina by the U.S. Chamber of Commerce.
(6) As far as the future goes, Regional Director Kreisberg does not see a real change in the law coming, though we are likely to continue to see an increase in the number and types of complaints brought before the NLRB in the social media area. He also recognized that the NLRB’s position in these cases will likely be reviewed by the judicial system as the cases make their way through the appeals process over time.
If nothing else, it remains clear that the important and topical issues involving social media and employment law are not going anywhere any time soon.