Acting General Counsel’s report issued in
May 2012. It discusses various cases where
employees were terminated or disciplined as
a result of their actions on social media,
addresses troublesome company policies,
and proposes a sample social media policy. 10
This social media policy has become the
starting point for many companies looking
to update their policies and handbooks.
The May 2012 guidance is one of three
memoranda issued by the NLRB, and also
includes some good pointers and best prac-
tices for employers, including that:
• Savings clauses generally do not cure
otherwise unlawful provisions. Merely
stating that a policy is not intended to
improperly interfere with employees’
rights under the NLRA is not sufficient.
• Blanket policy provisions need to be
narrowed. Prohibiting employees from
releasing confidential company information, for example, could be interpreted
as prohibiting employees from discussing their own terms and conditions
of employment. Similarly, generalized
statements that employees should not
make offensive or derogatory remarks
online could also be construed as chilling their right to engage in protected
activities.
• Providing examples of prohibited conduct may provide clarification and
remove potential ambiguity in policies.
One policy that was considered lawful
provided “sufficient examples of plainly
egregious conduct so that employees
would not reasonably construe the rule
to prohibit Section 7 conduct.” 11
8(a)( 1) action to enforce Section 7 rights
under the NLRA. The Board affirmed the
ALJ’s decision that held the company did
not violate the NLRA by firing an employee who posted pictures of an accident and
made comments in violation of company
rules. 12 In that case, an employee took pictures of a car in an adjacent facility that was
mistakenly driven into a pond. He posted
them on his Facebook page and also complained that Knauz did not do enough for
the event it was hosting. 13 Later, the
employee posted additional pictures and
comments, including one with the caption,
“This is your car: This is your car on
drugs.” 14
The Board found that the employee’s
actions were not protected activity under
the NLRA (i.e., he was not engaging with
other employees for their mutual aid and
protection). However, the Board did find
that the maintenance of a rule requiring
courtesy and respect was overbroad and
interfered with the NLRA. According to
the Board, such a rule could prohibit
employees from objecting to their working
conditions and seeking the support of others and, therefore, the company had to
cease maintaining such a rule. 15
Companies need to recognize that a
seemingly innocuous policy or practice can
implicate the protections afforded by the
NLRA, and simply because an employee
communicates in a virtual forum does not
mean the employee is deprived of the same
protections the employee would be entitled
to if the communication was a water-cooler discussion in a break room.
The legal landscape in this area is not all
doom and gloom for employers. The Board
sided with Karl Knauz Motors in a Section
It’s Not Overtime Unless I Say It’s Overtime
Another hot topic area that has been rein-
vigorated by the increase in the use of
social media and networking sites is the Fair
Labor Standards Act (“FLSA”). The FLSA
governs, among other things, the pay of
overtime to employees. 16 The FLSA
requires that covered, nonexempt employ-
ees be paid at least the federal minimum
wage17 for each hour worked and receive
overtime pay at one and one-half times the
employee’s regular rate of pay for all hours
worked over 40 in a work week. Overtime
pay comes up in the context of a social
media discussion because compensable pay
under the FLSA is based on the number of
hours worked. If a nonexempt employee is
performing work by texting other employ-
ees, responding to emails, or posting infor-
mation for the company on its Twitter
page, the employee may be entitled to addi-
tional pay and, possibly, overtime pay.18
INTERNET 1980s INTERNET 1984 • “Cyberspace” was coined by the science fiction novelist William Gibson to describe a new place created by worldwide com- puter networks in his 1984 novel Neuromancer. • The domain name system (DNS) is intro- duced. Number of hosts breaks 1,000. INTERNET 1986
• WarGames film is released in
1983.
• In 1983, InterNIC is created
by NSF to provide specific
Internet services such as
directory and database services, registration services, and
information services.
The National Science Foundation launches NSFNET (backbone speed of 56Kbps),
to link academic researchers to a new system of supercomputer centers. NSFNET
was the first network available to every researcher on every U.S. campus, and its
usage expanded exponentially. By the end of the 1980s, NSFNET had become the
de facto U.S. backbone of the fast-emerging Internet, and had laid the foundation
for the Internet’s explosive worldwide growth in the 1990s.
