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The NLRB Wants to Be Your 'Friend'

By Joseph G. Schmitt and Lisa M. Schmid

The popular social networking website Facebook currently boasts 750 million active users, 50% of whom log in on any given day. A recent study by the Pew Research Center indicates that 13% of Americans use Twitter. Google+, the new social networking upstart that is expected to give Facebook a run for its money, grew to more than 10 million users in two weeks of its invitation-only test phase. LinkedIn, a more professional social networking site, reached 100 million users in March of this year. Finally, many others utilize alternate social networking websites, including MySpace, as well as blogs, e-mail list servs, or online chat rooms.

These numbers are impressive to say the least, but what do they mean for employers? Well, given the popularity of such sites, it is likely that your employees are using at least one form or another of social media. Odds are that your employees use the sites to post information about their workplace, supervisors, or co-workers. Recognizing this trend, many employers have implemented or at least considered implementing Internet/social media policies in an effort to protect their reputations, protect their employees, and prevent the dissemination of confidential or proprietary information on the Internet. Many of these policies likely contain blanket prohibitions of disparaging, discriminatory, or defamatory remarks in relation to the company or its employees. These policies seem to make perfect sense, but unfortunately, employers need to re-think them in light of the National Labor Relations Board's (“NLRB”) recent decision in Hispanics United of Buffalo, Inc., Case No. 3-CA-27872, 2011 NLRB LEXIS 503 (N.L.R.B. Sept. 2, 2011).

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