In the wake of the National Labor Relations Board’s (NLRB) decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB has recently issued new guidance regarding employee handbook rules. The NLRB’s guidance can be found here.

In Boeing, the Board overturned its old standard, under which an employer rule violated the National Labor Relations Act (NLRA) if a worker could “reasonably construe” it to interfere with the right to engage in protected concerted activity. Under the new standard adopted by the Board, an employer rule will only violate the NLRA if it would be reasonably interpreted to interfere with workers’ NLRA rights considering the balance between (A) the nature and extent of the rule’s potential impact on protected rights and (B) the employer’s legitimate justifications for the rule.

As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse.  Although its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other misconduct on social media and must grapple with the implications of publicly aired grievances.

Although the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) is a federal statute that primarily protects against unauthorized computer access such as hacking, it can also impact employers in the realm of social media.  Originally enacted in 1984, CFAA makes it illegal to access knowingly or intentionally a “protected computer” without authorization or in excess of authorized access. Protected computers are defined broadly to include all computers that are used in or affect interstate commerce, and thus include most employer-owned computer systems.  Violations of CFAA may result in criminal penalties, and CFAA also permits individuals (and employers) to bring a civil action for damages or injunctive relief.  Employees rarely sue their employers under CFAA, but employers should nonetheless consider CFAA in formulating their social media policies and determining how they will regulate employee use of social media.

In a digital age where there are billions of active social media users globally it is conceivable that employees engage in activities and posts on media platforms, that may result in their dismissal. However, an employee’s social media posts can also be scrutinised outside of the misconduct space. In Nilan v Nthabeni (2017) 5 BLLR 521(LC), the South African court considered an employee’s social media post to decide whether the employee’s resignation was due to his desire to work for a competitor or to his wife having an affair with his employer.

Even when an employee is terminated for cause, it can be difficult to fight an employee’s claim for unemployment benefits. A September 2017 ruling from the Commonwealth Court of Pennsylvania may provide employers a new route to combat meritless unemployment claims. In most states, an unemployed individual may file for and receive unemployment benefits if he is out of work due to no fault of his own.  The Commonwealth Court of Pennsylvania recently affirmed a decision by the state’s unemployment board to deny a former painter at a metal company unemployment benefits because of a social media post he left after his departure from the company.

In South Africa, employees are under the mistaken belief that what they do in their time away from the office, specifically on social media, is private and beyond the reach of their employer’s control.

They fail to consider that they could face disciplinary action for their online rants and comments. This could be fatal to their employment. The reality is that with the escalating use of social media during working hours as well as outside of company time, employees are regularly coming under fire for what they post online.

In March of 2017, a California court of appeals prohibited the disclosure of an individual’s identity after the individual anonymously posted negative information about his former employer on the website Glassdoor.

Glassdoor, Inc. operates a website that allows individuals to post reviews anonymously about their employment experiences.  One such post was published to the website on June 21, 2015 by an individual claiming to be former employee of Machine Zone, Inc. The post included negative comments about the company, including:

Each year Harvard University, one of the world’s most prestigious universities, receives over 30,000 applications from prospective students for about 2,000 places in its first year class. Recently, ten of those successful applicants, due to graduate in 2021, had their offers of admission revoked before they set foot onto campus.  The reason?  The content of the offensive memes they had shared on a private Facebook group, which at one stage had been named “Harvard memes for horny bourgeois teens”.

On January 1, 2017, the National Labor Relations Board (“NLRB”) released an advice memorandum (dated September 22, 2016) that reviewed and approved Northwestern University’s revised Football Handbook’s social media policy. The NLRB Office of the General Counsel, which prepared the advice memorandum, was asked to advise whether the university’s Football Handbook policies, including its social media policy, were lawful.

Earlier this year, we discussed that a National Labor Relations Board (NLRB) administrative law judge found that an employee’s tweets could be considered protected “concerted activity” in Chipotle Services LLC d/b/a Chipotle Mexican Grill.  As a reminder, the administrative law judge determined that portions of Chipotle’s outdated Social Media Code of Conduct policy violated the U.S. National Labor Relations Act (NRLA).  The judge also found that Chipotle’s request that the employee remove his Twitter posts (i.e. “tweets”) also violated the NLRA. On August 18, 2016, a three-member panel of the National Labor Relations Board (NLRB) affirmed that Chipotle’s Social Media Code of Conduct violated the NLRA, but the NLRB reversed the administrative law judge’s finding related to the Twitter posts.