Employer Restrictions on Social Media Use May Be Subject to Lawsuits

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San Francisco law firm analyzes a recent lawsuit over a company’s restrictions of access to social media websites, and makes recommendations for employers to ensure that their policies do not make them subject to similar lawsuits.

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Restrictions on social media use at work may leave employers vulnerable to lawsuits.

The pivotal issue is, ‘Does the employer break the law by terminating an employee for submitting posts about the workplace to a social media website?’ The short answer is ‘Yes.'

Many employers put broad restrictions on the use of social media by their employees with respect to posting commentary about the workplace. The assumption is that the employers have the right to do so because the factual scenario serving as the basis for the speech is taking place on their private property, and is therefore not subject to the same free speech requirements of a public setting. But in a recent court case, the settlement agreement reached included the employer’s agreement that they could not “improperly restrict” employees from discussing their work on social networking websites, as doing so would constitute a violation of the National Labor Relations Act (“NLRA”). Ronnie Gipson, founding partner of San Francisco law firm Higa & Gipson, LLP, says employers should reexamine their restrictions on social networking; if their policies are overly strict, they may be risking a lawsuit.

In the precedent-setting case [Case No. 34-CA-12576] in Hartford, Connecticut, the employer, an emergency medical services provider, demanded that one of its employees submit a written incident report in connection with an ongoing investigation that had the potential to lead to disciplinary action for the employee. The employee requested that a union representative assist her with the preparation and submission of the incident report. The employer denied that request. The employee submitted the report and received disciplinary action as a result. The employee subsequently made entries on her Facebook account about the working conditions to include the incident and the people involved. When the company became aware of the postings, the employee was terminated for violating the company's Internet posting policy.

“The pivotal issue is, ‘Does the employer break the law by terminating an employee for submitting posts about the workplace to a social media website?’ The short answer is ‘Yes,’” Gipson, a San Francisco business attorney, explains on the Higa & Gipson, LLP blog.

The Hartford regional National Labor Relations Board (“NLRB”) office issued a complaint in the case of American Medical Response of Connecticut Inc. and International Brotherhood of Teamsters, Local 443, NLRB Case No. 34-CA-12576 on October 27, 2010 to challenge the employer’s restrictions using a law that governs labor practices: The National Labor Relations Act ("NLRA"), which protects the rights of employees to communicate with each other in order to better the working conditions of their collective employment. (Although the case referenced above includes a union, there is no need for the worker(s) to be represented by a union for the worker to receive the protection of the NLRA.)

From a legal standpoint, this case is very interesting because the policy issue being decided affects an employee's free speech. However, the mechanism used to protect the free speech is not the 1st Amendment, but rather the NLRA, which governs fair labor practices. Some view this approach as an end-run around the public/private distinctions of the free speech analysis. The legal community, specifically the defense bar, is watching the case to see how far the NLRB goes in applying the NLRA.

This precedent may not stand if a similar case is decided in court, but in the meantime Gipson advises that companies review their policies restricting employee postings on social media websites. The best course of action is to consult with an attorney to determine if current company policies make the company vulnerable to employer lawsuits for a NLRA violation.

For additional information about Internet policy protection, or any of Higa and Gipson, LLP’s legal services, call them at (415) 655-6820, e-mail them at gipson(at)higagipsonllp(dot)com or visit the firm’s website at http://www.higagipsonllp.com.

About Higa and Gipson, LLP
Higa & Gipson, LLP is a boutique law firm located in San Francisco, California. The firm is comprised of attorneys who previously built their practice with medium-sized firms. The firm focuses on business/commercial law, criminal defense, and aviation law.

These San Francisco business lawyers are committed to advocating on behalf of their clients to obtain the best results through the most cost-efficient means. Their attorneys represent clients in all stages of litigation; effectively resolving disputes through comprehensive case management, dispositive motions, alternative dispute resolution and, when warranted, trial.


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Ronnie Gipson
Higa & Gipson, LLP
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