FACEBOOK POLICIES TRICKY FOR EMPLOYERS, EMPLOYEES

3In the age of instant Tweets and impulsive Facebook posts, more companies are trying to figure out how they can limit what their employees say about work online without violating the law.

Confusion about what workers can or can't post has led to a surge of more than 100 complaints at the National Labor Relations Board — most within the past year — and created uncertainty for businesses about how far their social media policies can go.

The number of cases spiked last year after the NLRB sided with a Connecticut woman fired by an ambulance service firm for criticizing her company on Facebook. The board ordered the company to change its policy that had banned workers from discussing the company online. In Fall 2011, an NLRB administrative judge ordered a non-profit group in New York State to reinstate five workers it had fired for posting Facebook complaints about working conditions.

The National Labor Relations Act protects all workers engaged in "protected concerted activity" - such as a discussion of working conditions. However, companies are concerned about the effect of disparaging online remarks that hundreds or thousands of people might see. What's more, not everything workers write on Facebook or Twitter is necessarily legal just because they're discussing their job; the test is whether the message calls on fellow employees to take some group action or goes "over the top" in criticizing a supervisor or employer.

Our risk management professionals would be happy to discuss this tricky issue with you.

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