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Are Your Employees (Still) WILBing On Your Time?

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Melissa J. Jackson
Foster Swift Employment, Labor & Benefits Quarterly
Summer 2011

You may recall this topic from the Winter, 2010 newsletter. It is being reprised and updated because the issue is becoming even hotter. As you all know by now, social media continues to flourish in the workplace. Facebook, My Space, Linked In, and Twitter have become commonplace, not only on employees’ personal computers, but also on employers’ computers. Blogging has become a tool for companies that are marketing, as well as for employees who are bent on revenge.

We asked these questions in the winter newsletter.

  • Should an employer be concerned?
  • What should a concerned employer do?

The answer to the first question was and continues to be that all employers should be concerned … about the loss of employee productivity, potential damage to the employer’s reputation, a breach of confidentiality – and the growing trend for the National Labor Relations Board (NLRB)1 to become involved in protecting employees. And "yes," the NLRB can be a threat, even to non-union employers.

How do you minimize these risks? The answer still is to let employees know what is and is not prohibited. The easiest way to inform them is to put a policy in the employee handbook. (We are assuming here that you have a handbook and that you actively encourage your employees to refer to the policy; if either of these assumptions is incorrect, you could have even more problems, but that is a topic for another day). As we continually preach, an effective policy will allow effective monitoring. The policy will serve as a defense to claims of defamation, improper discipline and termination, and invasion of privacy. It will ensure consistency and uniformity in enforcement. It will inform employees that social media may not be used to harass or discriminate against others. It will remind employees that any restrictive covenants, such as non-compete, non-solicitation, and non-disclosure obligations, extend to the realm of social media.

Nevertheless, the answer is not to simply reserve the right to monitor and discipline as broadly as possible. As we informed you, in January, 2011, the NLRB brought charges against an employer because an employee had complained about her supervisor on her Facebook page. The NLRB charged that the employer violated the employee’s right to protest her working conditions. That case was settled in February, 2011. Nevertheless, in May, 2011, the NLRB again brought charges against an employer who fired five employees for complaining about their working conditions on Facebook. The NLRB stated that the posts were protected concerted activity and took issue with the employer’s policy, which prohibited employees from making disparaging remarks about the company or supervisors over the internet. This demonstrates that use of the internet will continue to be an arena in which the NLRB will be actively involved – regardless of whether the employer is unionized or not. You do not have the luxury of being IBT!2

If you have any questions, please contact a member of the Foster Swift Employment, Labor and Benefits Group.

A translation of "WILBing" for the "uninitiated" is Workplace Internet Leisure Browsing
1 The NLRB protects non-union and union employees from discrimination based on group action (concerted activity).
2 In Between Technology.