Academic journal article The Review of Litigation

Off-Duty Statutes and Social Media: The Need for Protection Regardless of Whether Speech Is Concerted

Academic journal article The Review of Litigation

Off-Duty Statutes and Social Media: The Need for Protection Regardless of Whether Speech Is Concerted

Article excerpt

I. Introduction: Social Media in the Workplace 220

II. Employer and Employee Interests and NLRB Guidance Concerning Social Media 222

A. Interests Implicated in the Regulation of Postings Concerning the Workplace 222

B. The Social Value of Facebook 224

C. The NLRB 's Guidance on Work-Related Social Media Postings 226

1. Cases Where Concerted Activity Was Not Found... 228

2. Cases Where Concerted Activity Was Found 229

3. Analysis of the NLRB's Decisions Concerning Social Media Postings 230

4. Differences in the Definition of Concerted Activity: Bush-Appointed Board Versus Obama-Appointed Board 232

a. Definition of "Concerted Activity " Under a Majority Bush-Appointed Board 233

b. Recap of Most Recent Decision by Majority Obama-Appointed Board in Hispanics United of Buffalo 234

c. Recent Developments 235

III. Conduct that Falls Outside the Scope of the NLRA.... 236

A. Texas: a State Without an Off-Duty Conduct Statute 238

B. States with Off-Duty Conduct Statutes 238

1. California 239

2. Colorado 240

3. North Dakota 241

4. New York 241

5. Remedies Available Under Off-Duty Statutes 242

C. Policy Concerns: Traditional At-Will Employment Versus Off-Duty Conduct Statutes 242

1. Justifications for the Traditional At-Will Employment Doctrine 242

2. Justifications for Enacting Off-Duty Conduct Statutes 244

D. Balancing act: Guidelines for State-Enacted Off-Duty Statutes 244

E. Why Off-Duty Statutes are Necessary: a Real-Life Example 247

IV. Conclusion 248

I. Introduction: Social Media in the Workplace

It is undeniable that social media has become an important part of our society.1 User-generated content on Facebook, Twitter, and Linkedln facilitates relationships among millions of family members, friends, and colleagues across the world.2 Facebook hosts the pages of over one billion active users.3 Over 500 million Twitter users produce 340 million tweets each day.4 Linkedln's 200 million users reside in over 200 countries and territories.5 Social media has affected not only these users' personal lives but also their places of business. In reaching the latter, social media has helped to blur the line between the home and the workplace. As the Internet has become today's "employee complaint box,"6 workers and labor unions have turned to social media to voice frustrations about countless work-related events.7 8

As employees increasingly post content about their employers, work conditions, and even private issues regarding clients or patients, there is much confusion about what employers can do to protect themselves from liability while still respecting their employees' rights. Also at issue is how employers may use an individual's online postings, many of which have no relation to employment, such as photos of the employee skydiving, socializing, or drinking outside of work hours. Under current law, an employer can regulate social media subject to: (1) rights conferred by Section 7 of the National Labor Relations Act (NLRA) and (2) state o off-duty conduct statutes.

This Note focuses on current NLRA policy with regard to social media and discusses differences in state laws governing discipline or termination of an employee based on after-work conduct. In doing so, this Note evaluates the legitimate interests of both employers and employees in using social media to discuss the workplace, reviews the NLRB's guidance on social media issues, and analyzes whether the NLRB has reached an appropriate balance of the competing interests. But it is important to recognize that the NLRA does not necessarily apply to employee speech that is not concerted. The NLRB has held that employee comments on social media that are "mere gripes" and not related to group activity are also not protected,9 although this could change based on recent NLRB policy decisions. Currently, the line between concerted speech for the mutual protection of employees and "mere gripes" is tenuous, and it is difficult to predict what factors may sway a court. …

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