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 212.421.4300 Phone 212.421.4303 Fax dlf@kbg-law.com www.kbg-law.com 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 candidates. 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- ployers 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 of employment. 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. In 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 |