Published on:

Social Networks Create Employment Discrimination Liability

It’s everywhere … Facebook, Twitter, MySpace, LinkedIn. Used by everyone … individuals, businesses, organizations, even our governments. With hundreds of millions posts discussing a range of topics. Our lives are transparent, and employers, including those in Las Vegas and Nevada, want access to their employee’s social media transparency.

In 2009, Sears Holdings implemented a social media policy prohibiting employees from using any social media medium to disparage the “company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” Representing Sears’ technicians, the International Brotherhood of Electrical Workers (IBEW) filed a charge asserting that the new Sears’ social media policy violated Section 7. Under Section 7, union and nonunion employees have the right to engage in protected “concerted activities,” which include activities where the employee acts with the authority of other employees, seeks to initiate, induce or prepare for group action, or brings group complaints to the employer’s attention. The National Labor Relations Board (NLRB) ruled that Sears’ social media policy did not violate Section 7 since it only prohibited “online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about [Sears] or working conditions.” Sears Holdings (Roebucks), Case 18-CA-19081 (December 4, 2009)

In 2010, the NLRB appeared to do an about face. It brought a complaint against American Medical Response of Connecticut, Inc. (AMR) for terminating an employee who used her Facebook page to criticize her supervisor. After discussions with the NLRB, the AMR agreed to narrow the scope of its social media policy. American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010)

Finally, in 2011, the National Labor Relations Board (NLRB) issued three advice memorandas that seemingly clarify the issue of employer/employee relationship and the world of social media. Employees who post personal or professional messages on social media sites cannot be disciplined or terminated if …

1. … the posts are a “concerted activity.” Wal-Mart, 17-CA-25030 (July 19, 2011) and JT’s Porch Saloon, Case No. 13-CA-46689 (July 7, 2011)
2. … their acts relate to the terms and conditions of their employment. Hispanics United of Buffalo, 3-CA-27872 (September 2, 2011).

The NLRB also ruled that employer’s who implement social media policies cannot make them overbroad or impermissibly vague such that it chills the employees exercise of their rights. While Nevada has not drafted any employment laws directed at social media activities, other states are. In New Jersey, the legislature is drafting a law to outlaw employers from asking employees or potential employees for their social media passwords.

The commentary is for educational and commentary purposes only. If you or someone you know has been the target of employment discrimination by a Las Vegas or Nevada employer, contact Lagomarsino Law to ensure your rights are protected. Contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.