Employers’ Rights to Control Employee’s Social Media Activity Still Unclear

Monday’s settlement of the “Facebook Firing” case has left employers across the country with little or no guidance on the issue of whether an employer can discipline or terminate an employee who posts disparaging comments about her employer online. The case, which was brought against AMR by the National Labor Relations Board, revolved around the question of what constitutes “protected concerted activity” in cyber-space, as that term is described under Section 7 of the National Labor Relations Act.
Employers across the country were hopeful that a court ruling in the case would provide more definitive guidance on how best to reconcile their desire to control the way in which their companies are depicted online with their employees’ right to engage in free and unfettered discussions about their employment.

However, on the eve of trial, the NLRB and AMR settled the matter and thus removed the opportunity for guidance that so many were anticipating. According to the Board’s press release: “[T]he company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours, and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

The overwhelming majority of court cases settle before trial. Of course, parties who elect to settle their differences out of court are to be applauded, it is nevertheless frustrating that employers, employees, and attorneys will have to wait for a case with similar issues to go to trial before courts get the opportunity to lay down the law. In light of the exploding popularity of social media, the wait is not likely to be long.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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