Category Archives: Social Media

Employees’ Comments on Social Media Sites May Be Protected

By Elisabeth Rowley Wall, Esq.
erowley@pashmanstein.com

In several recent National Labor Relations Board (NLRB) decisions, federal regulators have ordered employers to rework their social media policies limiting what workers can say online.  These decisions involve findings against big corporations like General Motors, Wal-Mart, Costco and Target for wrongfully terminating employees because of comments they made on Facebook and other social networks.  Social media postings critical of one’s supervisors or workplace may generally be considered protected “concerted activity” when the communications may be construed as “collective bargaining or other mutual aid and protection.”

It is common for employers to have social media policies in place that discourage comments that paint them in a negative light.  For example, it is typical for policies to prohibit discussing company matters publically and advising against disparaging managers, co-workers or the company itself.  Violating any of these restrictions is often grounds for termination.

However, in a series of rulings by the NLRB, labor regulators have declared many such blanket restrictions illegal.  Essentially, the NLRB has said that employees have a right to discuss work conditions freely and without fear of retribution, whether the conversations take place at the office or via social media.  To that end, the agency has ordered the reinstatement of several employees who were terminated for their posts on social networks and it is urging companies nationwide to rewrite their social media policies.

These decisions come in the midst of a larger debate over what constitutes appropriate conversation on Facebook and other social networks in our schools and universities, government, and corporations alike.  The NLRB rulings apply to nearly all private sector employers and tell companies that it is illegal to adopt broad social media policies if those policies discourage workers from exercising their right to communicate with one another in an effort to improve wages, benefits or working conditions.  Make no mistake, however, the agency has also found that it is permissible for employers to act against a lone employee ranting on the Internet.

For example, the NLRB affirmed the firing of a police reporter at the Arizona Daily Star, finding his comments on Twitter – “What?!?!?! Not over night homicide…You’re slacking, Tucson. – to be offensive, not concerted activity and not about working conditions.  The agency also affirmed the termination of a bartender in Illinois who, unhappy about not receiving a raise for many years, posted a comment on Facebook calling his customers “rednecks” and saying he hoped they choked on glass as they drove home drunk.  The agency found the bartenders comments to be personal venting, not the “concerted activity” aimed at improving wages and working conditions that is protected by federal law.

Some corporate officials argue that the NLRB is “intervening in the social media scene in an effort to remain relevant” and that it is “using new legal theories to expand its power in the workplace.”  The agency responds by stating that they are merely adapting the provisions of the National Labor Relations Act, enacted in 1935, to the 21st century workplace.

In fact, the NLRB is not the only government entity setting new rules about corporations and social media.  Illinois, California and Maryland have recently passed statutes barring companies from asking employees or job applicants for their social network passwords.  Similar statues are pending in other states, including New Jersey.

Labor lawyers advising companies instruct employers to adopt social media policies that are specific rather than impose across-the-board prohibitions.  It is extremely important, now more than ever, that employers have clear, unambiguous and appropriately worded workplace social media policies in place and that they seek the advice of counsel when considering the termination of an employee based upon a social media posting.

NOTE:

Maine Bill Would Shield Employees’ Facebook Passwords

A privacy bill announced Thursday by two Maine legislators and the American Civil Liberties Union would place the state among a growing number of states barring employers from seeking workers’ passwords to Facebook and other social media sites, while a second bill would require more conspicuous privacy policies on websites that gather users’ personal data.

Social Media in the Context of Restrictive Covenants

By Janie Byalik, Esq.
jbyalik@pashmanstein.com

Many employers these days insist that its employees execute restrictive covenants as a condition to their employment.  The restrictive covenant typically include non-compete and non-solicitation provisions.  A non-compete agreement is intended to prevent an employee from setting up his or own her competing business or going to work for the employer’s competitor following termination of employment.  A non-solicitation provision is utilized to prohibit ex-employees from diverting the employer’s customers or employees away from the employer for the benefit of the employee’s new competing business.

Restrictive covenants should carefully strike a balance between the employer’s interests in protecting its confidential information and relationship with its clients/employees and the ability of former employees to earn a living.  New Jersey courts have consistently enforced post-employment restraints incident to an employment relation where the restrictions are reasonably necessary for the protection of the employer, and the restrictions are reasonably limited in duration and geographic extent.  While in the past it has generally been simple to determine whether an ex-employee violated the terms of a non-compete and non-solicitation provision, the task is becoming increasingly difficult in the realm of the growing use of social media.  Sites like Facebook, MySpace and LinkedIn has added a layer of complexity to the determination of whether an employee violates a restrictive covenant.

Consider the following situations:  Employee A signs an employment contract containing a restrictive covenant prohibiting that employee from soliciting the former employer’s customers for a period of one-year following termination of employment.  Just months after leaving employment, Employee A updates his or her LinkedIn profile advertising the new products/services that employee now sells, which the former employee’s clients can see.  Is the act of updating the employee’s status constitute solicitation?  Or what if Employee B, who also signed a non-compete provision, terminates employment, sets up a competing business within the permissible restrictions, and posts on his Facebook page information regarding his new employee incentive programs, salary and bonus, which is much more attractive than that of his ex-employer.  If the former employer’s workers now seek to leave their current jobs and work for Employee B, has he violated the restrictive covenant by posting the announcement on Facebook?  Does the mere “connection” on LinkedIn or “friending” on Facebook with a customer or former colleague of a terminated employee violate his restrictive covenant?  Does compliance with restrictive covenants require former employees to un-connect or de-friend former customers or colleagues until the restrictive period ends?

The answer to these questions is far from clear and the law on this topic is still in its infancy.  The most effective way for an employer to protect him or herself is to carefully draft the restrictive covenant provisions to account for the increasing social media capabilities.  The employer should think carefully about drafting and tailoring the terms of its restrictive covenants to fit the specific circumstances of its business and adapt its policies to account for the changing social media technology.  The more clear and concise the terms, the more likely a court will uphold the covenant so long as those terms are reasonable.