Employees continue to file suits challenging company social media handbook policies and companies who discipline employee use of online tools like LinkedIn and Facebook. The New York Times recently reported, and various other media reports indicate, that absent a settlement, the National Labor Relations Board (NLRB) plans to commence a legal proceeding challenging a company’s social media policies and response (possible verbal reprimand) involving an employee’s Twitter post related to the company’s cooperation with union members.

The National Labor Relations Act (NLRA) is a federal labor law that prohibits companies from violating a worker’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions. The NLRB will commence legal proceedings claiming the company improperly restricted the employee’s right to use Twitter to discuss working conditions with co-workers and implemented an unlawful social media policy that chilled employees’ rights to discuss working conditions, which the NLRB will assert is a violation of Section 8(a)1 of the NLRA.

This case is not the first publicly reported social media legal challenge by the NLRB. In October 2010, the NLRB challenged a company over its social media policy after the company allegedly terminated an employee for criticizing her boss on Facebook. See Labor and Employment Law Weekly Update (Week of November 22, 2010). The company denied the allegation by asserting the employee termination resulted from performance issues, and a settlement was reached requiring the company to revise its Internet use policy.

Based on this continuing wave of legal challenges against social media policies and employment practices, it is prudent for companies to review social media policies frequently to ensure legal compliance, monitor this evolving area of labor and employment law, and obtain guidance from the human resources and legal departments when disciplining employees for social media activity.