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“If you guys were the inventors of Facebook, you’d have invented Facebook.”
— Mark Zuckerberg, from the movie, “The Social Network”

“The Social Network” movie is a fictional story of the birth of Facebook, but more specifically about founder Mark Zuckerberg and the simultaneous lawsuits against him by his best friend Eduardo Saverin and three former classmates. Now nearly 500 million users later—from its disputed origins at Harvard University—the prodigious social networking site is once again in the middle of a legal controversy. This time, the legal result may have an important impact in today’s workplace.

Recently, the National Labor Relations Board (NLRB) issued a complaint against a Connecticut employer for terminating an employee who criticized her supervisor on her Facebook page. The NLRB took the position that the Facebook postings constituted protected concerted activity and that the company’s blogging and Internet posting policy interfered with employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA).

Section 7 of the NLRA protects the rights of employees to form, join, or assist labor unions; bargain collectively through representatives of their own choosing; engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and refrain from any of these activities. The NLRA applies to both unionized and non-union employers.

Unlike the speed of a Twitter tweet, no decision from the NLRB administrative law judge will likely issue until mid to late 2011. Still, the decision will provide some legal insight on whether and how employers may restrict their employees’ electronic communications, including via social media.

Thus, the NLRB could alter the landscape of employee communications under the NLRA and might make it extremely difficult for employers to implement or enforce any non-disparagement aspect of a social media policy.

So, what’s an employer to do?

The evolution of web-based social media, and revolution of a new communications era, covers a wide swath of legal issues. It is still a recommended practice for an employer to adopt a policy which addresses these topics:

  • Employee use of company computers and electronic devices;
  • Access to the Internet;
  • Non-disclosure of company proprietary information and trade secrets; and
  • Non-disparagement provisions involving employee communications.

At the same time, new technology is governed by employment discrimination laws that have long been on the books. These would specifically pertain to an employer using Facebook or other social networking sites for background checking. For example, an adverse employment decision, such as a failure to hire, discharge or demotion, based on information on a social networking site might run afoul of federal and state discrimination laws. It could be evidence of unlawful discrimination if an employer checked for such Internet information on only certain types of applicants or employees, for example, Native Americans and Hispanics. It could also be evidence of unlawful discrimination if, although the employer searches for such information on all applicants for employees, discriminatory bias affects the employer’s evaluation of the information obtained.

There may also be discrimination concerns if the employer learns about medical or health information included in an employee’s Facebook posts. Moreover, the use of a social networking site also raises questions about privacy issues. Some court cases have been brought by employees alleging a violation of privacy rights. However, such a claim generally requires a “reasonable expectation of privacy” finding, and since Facebook is generally open to many individuals, it has been difficult to establish a privacy case.

Another law that could be impacted by reading an employee’s social chats is the Fair Credit Reporting Act. Background information on credit or criminal history, if obtained by a third party investigator, could subject such information to the notice provisions of the Fair Credit Reporting Act.

A recent case in New Jersey also demonstrates that unauthorized access to an internet chat group can create legal headaches for employers. In that case, the former employee claimed that her supervisors gained unauthorized access to her password and read her communications posted in a private chat room on the Internet. The court found that the actions of the supervisors violated the federal Stored Communications Act because they made an unauthorized use of examining information that was stored on the employee’s computer. While there was a clear finding of unauthorized access, such conduct establishes some legal limits on examining an employee’s MySpace or Twitter messages.

On a more positive note …

At the same time, companies can benefit from the value of online social media sites and blogs as vital resources to positively promote the organization’s mission and values, operational goals, marketing and recruitment activities. Just like the scales of justice themselves, there is a never-ending quest to find the proper balance between valid and possible unlawful conduct on the ever-changing world of the Internet.