By Megan H. Poonolly

Many employees today have embraced Facebook, YouTube, Twitter, Reddit and other social media tools as a way to connect with anyone and everyone they know and broadcast their every thought and emotion. Coupled with the proliferation of smartphones, this widespread adoption of social media is increasingly impacting the landscape of sexual

By Uma Chandrasekaran and Annette Kim

Employers may need to tweak their workplace investigation policies in order keep complaints of twerking out of the workplace. Recent decisions and guidance from the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have spotlighted the need for employers to develop  narrow policies while maintaining flexibility to address workplace-related concerns, including harassment on social media. 

As we have blogged before here and here, the NLRB has actively scrutinized and stricken down employer social media policies as being overbroad and having a “chilling” effect on employees’ rights to engage in activity protected by Section 7 of the National Labor Relations Act (“NLRA”). Despite the NLRB’s decisions, employers cannot afford to turn a blind eye to their employees’ social media activities altogether, because social media harassment can, in certain circumstances, support Title VII harassment claims.

Notably, the First, Second, Seventh, Eighth and Ninth federal circuit courts currently allow an employee’s “off-the-clock” social media conduct to be considered as part of the “totality of the circumstances” to show a hostile work environment harassment claim under Title VII. 
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By: Paul Galligan

What rocks does an employer need to look under when faced with employee posting bad things about it on a social media website?  Rock one is more like the pebble in your shoe, the National Labor Relations Board (the “NLRB”). While the NLRB is usually known for regulating affairs between unions, employers, and union represented employees, in the last few years it has taken the lead role as protector of the hostile employee venting on Facebook, Twitter or any other social media outlet.  Most employers whose employees are not represented by a union have never dealt with the NLRB.  Discipline an employee for posting unkind or disloyal things about management or corporate culture and you will probably have to deal with the NLRB, the new champion of the blogosphere. 

Whether employees are union represented or not, the NLRB believes that when employees post comments on a social media site about their employer, they may be engaging in “protected concerted activity.”  The NLRB views the posting as “concerted” activity when it concerns working conditions and the activity is for the benefit of two or more workers, not just the employee doing the posting.  It is “protected” activity unless the employee’s post crosses a vague (some would say nebulous and still undefined) line into griping or personal rants, and becomes unprotected.    
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