How Laws Concerning Social Media Use in the Workplace - Essay Sample

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University of Richmond
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Social media continues to become vital to both the people and companies. People have embarked on using social media in finding jobs while employers use this form of media in getting employees as well as promoting businesses. However, the most workplace has employers controlling how the employees use social media based on various reasons like violation of federal laws or even exposing the company's private issues. In Triple Play case (O'Brien p.51-52) employees embraced the use of social media in expressing their grievances regarding the tax-withholding practices by the company. In deciding on the case, the NLRB's decision based on termination of the contract for two employees after a former employee initiated the conversation on Facebook page reading, "Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money... Wtf!!!!" (Gordon & Argento p.1)In reply to the post, one employee liked the post while another one wrote, "I owe too. Such an asshole" (Gordon & Argento p.1) Despite the fact that the employer had fired the employees, the Board together with the Administrative Law Judge found the 1st and second reactions of the employees to have been protected under section 7 of NLRA. Thus the decision by the employer to fire the two workers was unlawful.

Despite the fact that the language in the Facebook posts was profane, as argued in Atlantic Steel, the Board did not apply it since the use of Atlantic Steel in social media cases has not yet been approved by NLRB given that it is hard to analyze them as their results are in most cases confusing. Additionally, the decision by the NLRB based on the fact that the comments of the employees were protected under Jefferson Standard. The Jefferson Standard provides that, "employee communications that are intended to appeal directly to third parties, with an eye toward whether those communications reference a labor dispute and are disparaging of the employer or its product as to lose the protection of the [NLRA]" (Allen p.15).

Thus, it is evident according to the Jefferson Standard that the employer's decision to fire the two workers was unfair and unlawful. Given the three memos released in 2011 and 2012 by Acting General Counsel Lafe Solomon, the first report based on 14 cases with four involving employees' use of social media, in this case, Facebook, the General Counsel found that the employees Facebook activities were protected. It is so since the concerted activity by the employees majored on the discussion of terms and conditions regarding their employment, not with other persons but fellow employees. However, the General Counsel had another view regarding those cases involving Twitter or Facebook posts in that the posts were found to be not protected under the law. For example, in the case where a union was found to have engaged in unlawful activities of video typing interviews with employees at an event which was nonunion and posted the edited version on both the Local Union's Facebook page as well as on YouTube.

The content of the interview involved the issue of immigration status. The Union was found guilty for having posted the context of the meeting on social media since these actions were not protected under the law. Concerning the activities of the Triple Play employer firing the two workers, the Second Report of Jan 25, 2012, provides policies under which employers should base on before discharging the employees on matters concerning Facebook posts. According to NLRB and social media second report, "Employer policies should not be so sweeping that they prohibit the kinds of activity protected by the federal labor law, such as the discussion of wages or working conditions among employees"(2012). It implies that the decision by the Board for the employees to receive a back pay as well as being reinstated is because the posts were work-related and thus the employer had the duty to revise all internet policies of the company.

Works Cited

Allen, Elizabeth. "You Can't Say That on Facebook: The NLRA's Opprobriousness Standard and Social Media." Wash. UJL & Poly 45 (2014): 195.

Gordon, P., and Z. Argento. "NLRB's recent triple play decision tackles two critical social media issues for employers. Litter." (2014).

O'Brien, Christine Neylon. "I Swear-From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases.". John's L. Rev. 90 (2016): 53.

Treem, Jeffrey W., and Paul M. Leonardi. "Social media use in organizations: Exploring the affordances of visibility, editability, persistence, and association." Annals of the International Communication Association 36.1 (2013): 143-189.

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