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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Social networking policies may violate employee rights, NLRB finds

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In the Internet era, social networking sites like Twitter and Facebook have largely replaced the proverbial workplace water cooler. Unlike old-fashioned chatter between coworkers, however, an employee’s gripes and grievances can easily become both public and permanent when aired online.

To address this issue, many businesses have sought ways to safeguard their online reputations by creating policies that limit what employees may post on social media sites. For example, some employers have sought to bar employees from publicly discussing or criticizing company matters, while others have prohibited workers from making comments that may be interpreted as disrespectful or harmful to company’s reputation. However, recent rulings by federal labor regulators have established that many blanket prohibitions of this kind are illegal and unenforceable.

Employees have a right to discuss work conditions

The National Labor Relations Board has spent decades defending the rights of workers under the National Labor Relations Act, which established that employees are entitled to a free discussion of working conditions without fear of punishment from their employers.

The NLRB asserts that the protection of social media speech is a natural extension of the principles set forth under the NLRA in 1935, and in recent years the board has reviewed a growing number of cases involving workers who have been terminated as a result of statements they have made on Facebook and other social media outlets. In several of these cases, the NLRB has held that the workers were fired illegally. In response to the trend, the NLRB has advised employers to revisit their social media policies and make revisions to those that are unduly restrictive of employee speech.

Federal regulators are not the only ones concerned about the degree of influence that businesses may exert over the online statements of their employees. A handful of states, the most recent of which include California and Illinois, have passed legislation making it illegal for companies to require workers or job applicants to disclose their social media passwords. Colorado lawmakers have not yet addressed the issue.

Despite the recent rulings, employers are still permitted to exert a certain degree of influence over some public statements made by their employees. While the distinction between legal and illegal social media restrictions has not yet been well defined, the NLRB generally looks less favorably on broader prohibitions and is more accepting of finely tuned, specific restrictions. Thus, while a blanket ban on “offensive” statements may be invalidated as overly broad and open to interpretation, a specific restriction that bars the disclosure of trade secrets or other work-related information may be upheld.

Legal help for wrongful termination in Colorado

Colorado workers who have lost their jobs as a result of their statements on social media sites are encouraged to speak with an experienced employment lawyer. An attorney who is knowledgeable in the area of wrongful termination can help workers determine whether their rights may have been violated and can provide a thorough discussion of the legal options moving forward.

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