On April 18, 2012, Jonathan Cerrito, Dan Brice and Ginger LaChapelle of Blitman & King presented to the Schenectady County Dental Association on issues involving 401(k) plan administration, HIPAA and employment law. Thank you to Richard Lamanna, DDS and the other members of the Association for the opportunity.

Social Media—Twitter, Facebook, and other means of internet type communications—have become ubiquitous.  For those who have embraced the speed and spontaneity of such means of communication they are a boon.  Their use in connection with the workplace can be a trap for both the unwary employee and employer.

Jules Smith, a partner in the Labor and Employment Practice of Blitman & King, recently authored a paper discussing the latest pronouncements of the National Labor Relations concerning employer applications of rules restricting employee use of Social Media, which are generally measured against the rights contained in Section 7 of the National Labor Relations Act.  Section 7 provides that employees not only have the right to join a labor organization and bargain through representatives of their choosing, but also have the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”   Concerted protected activities can occur in the absence of any labor organization.  In order to obtain the protections of the NLRA, employee action must be both concerted and protected.

The paper begins with a short history of the National Labor Relations Act, and summary of the processes and jurisdiction of the National Labor Relations Board, the agency with primary authority to enforce the NLRA.  Following thereafter is a primer on concerted/protected activities.  The paper then discusses the application of the concerted/protected activity law to the new area of social media.  Several cases are briefly discussed with analysis of the holdings of each situation.

Finally outlined is the NLRB’s treatment of employer rules adopted in response to the burgeoning use of employees of social media.  As will be seen, these rules are often overbroad and restrictive to employee rights under Section 7 of the NLRA.

Social Media Use May Be Concerted Protected Activity Under Labor Law