Social Media for Utilities – Pocket Part #1 – NLRB Protected Activities

by Carolyn Elefant on September 8, 2011

in Pocket Parts, Social Media in Regulated Utilities

I’m not even sure how many of you remember, or even know what a pocket part is – but these updates are intend to serve as an electronic version. Back in January 2011, I published this article, The Power of Social Media: Legal Issues and Best Practices for Utilities Engaging Social Media, which is an exhaustive summary of the legal issues that utility may encounter when using social media – from business matters like employment, IP, copyright and defamation – to regulatory issues, like rate recovery. While it was satisfying for me to outline the universe of issues, social media is in a state of flux, with new cases emerging. Thus, in an effort to try to keep the article current, I’ll be updating it here every so often. With that, here’s the first installment:

NLRB Protected Activity (Elefant, 32 Energy LJ at 18-19)
In August 2011, the NLRB issued this Memo summarizing recent employment-related cases in which the NLRB was called upon to resolve whether the employee’s use of social media was a “protected activity.” Employer interference with, or discipline of an employee engaged in exercise of protected rights (whether union or non-union) constitutes an unfair labor practice that violates the National Labor Relations Act (NLRA).

The NLRB memo summarizes more than a dozen cases where it addressed the whether an employee’s conduct was a concerted activity (protected by law) or just a personal rant or gripe, for which an employee can be disciplined or terminated. My colleague Venkat Balasubramani offers an excellent summary at Technology and Marketing Blog; here are some examples extracted directly from his post:

 Unprotected activity: Here are a few that the NLRB said were not protected activity:

- posting that a Wal-Mart assistant manager was being a “super mega puta”;
- Tweets by a journalist that criticized other media outlets and some with sexual content (after being warned);
- bartender who posted about an employer’s tipping policy (in response to a non-employee question);
- employee who posted on her Senator’s wall about government contracts her employer had secured;
- employee who posted about mentally disabled clients.

Overly broad social media policies (these impermissibly infringe on protected rights)

- prohibition on communications that constitute “embarrassment, harassment or defamation” of the employers and staff members and a similar prohibition “against statements that lack truthfulness or that might damage the reputation or goodwill of the [employer], its staff, or employees”;
- prohibition on employee use of microblogging tools on their own time “to talk about company business on their personal accounts; from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . [and] from posting any pictures or comments involving the company or its employees that could be construed as inappropriate”;
- prohibition on employees posting pictures of themselves “which depict the company in any way, including a company inform, corporate logo . . . .”;
- prohibition on “disparaging” remarks when discussing the employer or supervisors, coworkers and/or competitors.

The NLRB’s memo reflects the difficulty of trying establish black-letter clarity and certainty in an area that’s still evolving. For now, employers should keep in mind that just as they are watching employees on social media, the NLRB is watching them.

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