Duff on Hospitality Law

The rash of NLRB guidance and new protections for employee social media activity discussed in our previous posts may make employers shy about taking corrective action based on an employee’s social media postings. While employers should always be careful in these situations, however, the mere fact that something is posted online does not make it “protected.” Recent examples in the news are a great reminder that where a posting is vulgar, offensive, or airs a petty grievance without implicating employees’ rights to discuss the terms and conditions of employment, the employer can and in many cases should discipline the employee. Where a posting is less offensive, however, the employer should tread carefully, as unpopular personnel decisions can also draw serious scrutiny.

Remember when Facebook was just for college kids? Well, things have changed. These days it seems like even giant companies are using social media to show their warm and fuzzy sides and to connect with customers. Obviously, the CEOs of these companies are not spending their time maintaining the accounts and posting clever comments. On the contrary, companies usually dedicate one or more employees to speak on behalf of the company, through a company-sponsored Facebook, Twitter, or other social media account. If done right, an account can build up thousands of followers and grow to host useful information, photos, or communications, becoming an important resource for customers. 

But what happens if the employee who is running a company-sponsored account quits? In a perfect world, that employee would gladly relinquish control of the account back to the company. But what if the employee leaves on bad terms? What if the employee leaves for a rival company? What if the employee changes the password and starts posting negative comments, confidential information, or trade secrets? Sorry to get all lawyer-y, but these are the questions that keep me up nights.

This post looks at two recent National Labor Relations Board reports and their impact on employers' social media policies. Several planned upcoming posts will also be looking at social media and its effects on hoteliers's and restaurateurs' operations - stay tuned.

Thanks to the internet, a single disgruntled employee can now do dramatic damage to a company’s image through posts on social media sites. (Just ask Domino's Pizza or Hotel Renaissance). The social media policies employers have instituted in the last few years may work to inhibit online employer-bashing; however, they can also come perilously close to violating the law. To assist employers in navigating this rapidly changing area of law, the National Labor Relations Board (“NLRB”) has issued two social media reports in the last seven months, explaining their rulings in several recent social media cases. As this posting demonstrates, even if you think you have a good social media policy, you may want to revisit it, given the latest NLRB guidance.

Employees in both unionized and non-unionized workplaces have protected rights to certain types of speech under the National Labor Relations Act. These include, briefly, the right to discuss terms and conditions of employment and unfair labor practices with coworkers and the right to engage in concerted activity. Employers who want to restrict employees from making disparaging comments about the company online must carefully phrase their policies to avoid trampling on these rights.

Mike Brunet is an associate working closely with Diana Shukis in our Labor, Employment & Immigration group. Both Mike and Diana do a lot of work with our hospitality clients in the areas of personnel and management issues - from creating and implementing comprehensive policies and procedures to providing key, timely advice during volatile workplace situations.  Today, Mike tackles the hot topic of employee social networking, from an employer’s perspective: