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Social Media Strikes Again

Feb 08, 20112 mins
IT Leadership

I have previously blogged about the pitfalls of employee use of social networking. Those pitfalls were highlighted yesterday with the announcement of a settlement in a case involving a woman who was allegedly fired for criticizing her boss on Facebook. The National Labor Relations Board (NLRB) sued her employer, arguing the employee’s comments were protected by a long-standing law that permits employees to discuss working conditions, wages, hours, etc. The employer contended it terminated the woman for unrelated reasons and denied any wrong-doing.

Putting aside the merits of the claims, the case makes clear that businesses must look before they leap. They need to carefully evaluate whether they are taking action that could be construed as restricting their employees’ right to engage in protected speech. This means avoiding policies that include blanket prohibitions on an employee’s ability to discuss their employment online or make comments about their employer. While policies can restrict employees from disclosing company confidential information or intellectual property and can prevent employees from making misleading comments about their employer’s products, they cannot be framed so broadly as to be seen as limiting all speech by the employee – particularly speech relating to the employee’s thoughts regarding their employer. This may be a bitter pill to swallow for some businesses.

This most recent case and several others make clear that even in instances where employees engage in highly offensive, expletive-riddled rants about their employers, the speech may be protected. In many instances, the employer’s best approach is to monitor the situation, but take no action. Few people actually read the postings of others online. In fact, the overwhelming majority of blogs and other social commentary online have only their own authors for an audience. It may best to wait and see if a tree falling in the woods with no one to hear it really does make any noise.


Michael R. Overly is a partner and intellectual property lawyer with Foley & Lardner LLP where he focuses on drafting and negotiating technology related agreements, software licenses, hardware acquisition, development, disaster recovery, outsourcing agreements, information security agreements, e-commerce agreements, and technology use policies. He counsels clients in the areas of technology acquisition, information security, electronic commerce, and on-line law.

Mr. Overly is a member of the Technology Transactions & Outsourcing and Privacy, Security & Information Management Practices. Mr. Overly is one of the few practicing lawyers who has satisfied the rigorous requirements necessary to obtain the Certified Information System Auditor (CISA), Certified Information Privacy Professional (CIPP), Certified Information Systems Security Professional (CISSP), Information Systems Security Management Professional (ISSMP), Certified Risk and Information System Controls (CRISC) and Certified Outsourcing Professional (COP) certifications.

The opinions expressed in this blog are those of Michael R. Overly and do not necessarily represent those of IDG Communications, Inc., its parent, subsidiary or affiliated companies.

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