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A closer look at social media and employment law

The proliferation of smartphones, tablet computers, laptops and social media coupled with the widespread availability of wireless Internet means that the vast majority of employees are now truly connected to their workplaces 24/7.

While this results in increased productivity and a dynamic workforce more often than not, it can lead to potential problems, particularly where employees and social media are concerned.

A quick search engine query of "social media workplace faux-pas" will likely turn up pages of results of employees who lost their jobs after making postings to Facebook, Twitter, Reddit or other forums that their employer found objectionable.

This is not to say, however, that employees are without rights when it comes to social media posts that are related to their employment.

Indeed, the National Labor Relations Act specifically states that employees cannot be stopped from undertaking concerted activities for their mutual aid and benefit.

"Just like 50 years ago, employers can't stop employees from talking and trying to better their benefits or the way they're treated," said one employment law attorney. "Just because they're not doing it at a bar or at each others' homes, and they're doing it on Facebook doesn't mean you can stop them from doing it."

Accordingly, while employees can share work-related thoughts or concerns with fellow employees without fear of reprisal, it's nevertheless important to ensure that these communications fall within the ambit of "concerted activity."

The National Labor Relations Board indicates that concerted activity typically involves "two or more employees acting together to improve wages or working conditions, [while] the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others."

Typically, the answer as to whether an employee's social media activity is considered concerted activity hinges upon whether the employee is seeking improvements that could benefit fellow employees, or whether it is simply the airing of a personal grievance or reckless/malicious behavior.

By way of illustration, consider an employee who was fired after posting a photo of a receipt from a customer who left her no tip on Instagram. Here, this would clearly constitute a purely personal matter.

What all of this serves to underscore is that the intersection of employment law and social media is still evolving and rather complex. As such, those employees who have been reprimanded or even terminated because of a social media conversation should strongly consider speaking with an experienced legal professional who can explore whether what transpired was within legal boundaries and, if not, pursue the necessary action.

Source: The Plain Dealer, "Tips on avoiding social media faux-pas in the workplace," Janet Cho, Feb. 9, 2014

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