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Tweet Relief

July 16, 2012

Allen Kato, associate in the Litigation Group with Fenwick & West, was recently quoted in the National Law Journal article, "Tweet ​Relief."

The article examines the National Labor Relations Board's protection of social media use by employees, even when they are non-union workers.  With the NLRB involved in over 100 cases to date on social media issues, the agency has finally issued extensive guidelines for employers regarding social media activity by employees.

Among the guidelines released on May 30, 2012, the NLRB asks that employers update their social media policies to specifically identify the types of confidential information employees cannot reveal, including trade secrets or information covered by attorney-client privilege.

The agency also said that an employer cannot prevent an employee from posting "offensive, demeaning, abusive or inappropriate remarks," stating that this covers too broad a spectrum of communications "that would include protected criticisms of the Employer's labor policies or treatment of employees."

They also rejected the idea that employers could require employees to obtain permission in order to use copyrighted or trademarked images.

Allen Kato, associate with Fenwick & West, says that many of the NLRB's social-media rules "are not that much of a stretch from existing law."

Using the example of workers picketing unfair employment, Kato says, "They're allowed to make those types of comments to get public support." The NLRB is "overlaying that into social media."

"But pickets are contained and controlled," he said. "If you post something on Facebook or a video on YouTube, it's much more widely blasted, and a bigger deal for employers."