current practice focuses on structuring complex corporate and
commercial transactions, including joint ventures, acquisitions, and
bank financings, licenses, and negotiating and drafting contracts,
as well as business formation, governance and compliance,
employment matters, and representing non-profits.
425 Park Avenue - 31st Floor
New York, New York 10022-3598
via the internet with networks of people
("social media") has revolutionized the
way we share and distribute information
and given rise to new complexities in
the employer-employee relationship.
Employees post content through platforms
such as Facebook, blogs, and online
forums, and employers use this power-
ful medium to promote their businesses,
communicate with customers, and attract
If managed effectively, social media
can be beneficial to both employees and
businesses. However, employers who do
not have a well-written policy with clear
guidelines about when, where, and for
what purposes social media may be used
in connection with employment, leave
themselves vulnerable to legal risks
such as charges of unfair labor practices
involving termination of employees for
posts to Facebook.
Turns Its Focus to Social Media
the rapid growth of social media in the
workplace. However, the National Labor
Relations Board ("NLRB"), which investi-
gates and remedies unfair labor practices,
has focused its attention on protecting
employees' rights to speech under the
National Labor Relations Act ("NLRA")
by scrutinizing employer policies aimed at
regulating use of social media and deter-
mining what online communications fall
within the protection of the NLRA.
The NLRA applies to most private em-
ment) the right to engage in "concerted
activity," which occurs "when two or more
employees take action for their mutual
aid or protection regarding terms and
conditions of employment."
ing with coworkers and third-parties about
gaining, among others. Even unprofes-
sional communications may be protected,
if they relate to terms and conditions
be protected if the employee is acting
on behalf of other employees. Section 8
of the NLRA prohibits employers from
interfering with an employee's exercise
of Section 7 rights.
for navigating unchartered legal terrain,
the NLRB's General Counsel issued
three reports between August 2011 and
May 2012 ("Reports") summarizing
treatments by administrative law judges
("ALJ") in 35 cases arising in the context
of "today's social media."
scrutinizing the lawfulness of policies
under the NLRA and addressing when
an employee can be discharged on the
basis of social media activity.
that defame the company or any person.
Reversing the ALJ, the NLRB found the
policy violated Section 8 because it was
"over broad" and "would reasonably
tend to chill employees" in the exercise
of their rights to engage in "concerted
Guidance from the NLRB