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Employees Use 1930s Labor Law Today for Social Media Protection

ONLINE PRIVACY—U.S.

December 7, 2011

The Wall Street Journal reports that workers are now using a decades-old labor law to defend themselves from repercussions for making online comments about their employers. The National Labor Relations Act of 1935 grants private-sector employees certain rights to complain and is presided over by the National Labor Relations Board (NLRB). More than 100 employers have been accused in the last year of “improper activity related to social media practices or policies,” the report states, and the NLRB has decided that about half are worthy of action—generally a civil complaint against the employer to be heard by a NLRB judge. Philip Gordon of Littler Mendelson, an employment and labor law firm, says that before disciplining employees, employers should ask themselves if the complaint pertains to wages, hours or working conditions—specifically protected by the law--and if the employee is expressing an individual gripe or speaking on behalf of coworkers about a shared concern. “The NLRB’s own focus on analyzing complaints on a case-by-case basis highlights the difficulty for employers in determining whether an employee’s social media activity is legally protected. Still, some types of posts rarely will enjoy legal protection. These include unauthorized disclosure of a patient’s protected health information or of trade secrets and other confidential business information; false statements about the quality of an employer’s products or services, and individualized complaints about a supervisor,” Gordon said, adding that, as a practical matter, “employers need to toughen their skin a bit, which should help to avoid unnecessary tangles with the NLRB or a union” and focus their attention on comments that are truly damaging to the brand or the work environment. (Registration may be required to access this story.)