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New York City tour guide's Facebook postings constituted protected union organizing activities (New York Party Shuttle, LLC and Fred Pflantzer, CN: 02-CA-073340). The NLRB determined that the employer unlawfully discharged its bus driver employee when it refused to provide him new saycheesetv assignments after he posted Facebook messages criticizing their employment practices. The employee's posts referred to one of many employee's former employer as a "worker's paradise" in comparison to his new employer, noted that "there's no union to guard you," and complained that paychecks from his current employer sometimes bounced. His postings also stated that whenever he began to agitate for a union, he stopped getting scheduled for work. These posts were protected, in line with the NLRB.

Concerted activity is not at all times protected by the Act, whether manufactured in person or electronically via social media. The underside line is that whenever conduct has a demonstrable impact on an employer's business or is of such character as to render the employee unfit for further service, the NLRA won't protect the employee.

The Lesson: these types of Facebook posts by employees regarding their employer have been already determined as not constituting protected conduct under the law1. posts containing profanity: 2. posts hurling insults at the employer; and 3. posts showing disdain for the employer. Your business's social media policy can restrict this kind of conduct. But, employees who complain about workplace treatment based on their social media activity may be protected under the NLRA, even if their posts contain disrespectful or coarse language!

Terminating employees centered on social media policies that violate the NLRA will subject employers to liability under the law. This might include reinstating the employee with full back pay and benefits. So, don't include provisions in your company's social media policies that the NLRB has determined to be unlawful.Your organization should stay with the typical guidelines established by the recent NLRB decisions and should even include specific types of posts not permitted.

-Geolocation Issues

Your organization should also pay attention to Geo-Location Issues. For example, you can find instances where in actuality the location of an employee itself may actually be confidential, such as at the offices of a business which could potentially be acquired by your business. Along those lines, the social media policy should address using geo-location top features of social media platforms and potentially restrict enabling such features during such times.

-Be Specific!

Where most social media policies fail according to numerous attorneys is that they're often missing illustrative examples. To be able to comply with the NLRA, your company's social media policy should define or give illustrative types of terms that the NLRB has identified as problematic.

Rule: Your policy should contain carefully drafted examples that illustrate the prohibited behavior, your policy should not include sweeping, overly broad prohibitions.

Avoid vague and general outright bans! For example, as opposed to banning any disclosure of a company's confidential information, the policy should specify just what can't be disclosed (such as trade secrets, customer information, business strategies and product development). Also including language that broadly restricts "any disparaging remarks" can also be not a good idea. The underside line is that employees have the proper to complain about their employer and outright restrictions against posting such complaints isn't legal.


Remember, your company should always monitor this content on your company-owned social media pages to make sure legal compliance. Ultimately, complying with what the law states and avoiding liability is around every business owner! There's no social media'cookie-cutter'policy. Each company social media policy must certanly be specific to the organization culture and its expectations.

This article was written by Philip A. Nicolosi, J.D. Mr. Nicolosi provides legal services through his law firm, Phil Nicolosi Law, P.C., concentrating on startup and small business law, Internet & technology law and commercial transactions.

Mr. Nicolosi serves as a dependable advisor to numerous startups and small to medium sized businesses. This includes representation for a wide selection of business law matters including business organization, corporate/LLC governance, regulatory law, contracts and transactions and other matters beyond litigation. Mr. Nicolosi provides guidance with e-commerce, Internet and mobile marketing and technology-related legal matters to numerous of his business clients. He also assists startups with seed funding and venture capital law.

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