A San Diego Gas & Electric (SDG&E) company employee filed a lawsuit against SDG&E after she was fired because of her Facebook post about a customer. Did SDG&E do anything wrong?

The issue of whether an employer can discipline an employee for his/her Facebook posts has received plenty of attention in the national press. HR Informant previously reported on the National Labor Relations Board’s activity in this area.

If an employee discusses working conditions on his/her Facebook page, that activity may be protected under Section 7 of the National Labor Relations Act (NLRA). Under Section 7, employees in both union and nonunion workplaces have the right to engage in concerted activities, including discussing working conditions, pay or other work-related issues.

In 2011, the NLRB acted against several employers when those employers disciplined employees for work-related comments on Facebook.

In San Diego, the SDG&E employee said she was fired after allegedly posting a comment on a co-worker’s Facebook page about a customer and using the customer’s first and last name. According to the employee, SDG&E told her she was fired because her Facebook post violated the company’s customer privacy policy.

The SDG&E employee filed a lawsuit claiming that the alleged violation of the company’s customer privacy policy is not the real reason for the termination. The lawsuit alleges that the firing has a discriminatory motive.

Though employees may not be fired for an unlawful reason, such as engaging in protected activities, employers still have the right to set and enforce policies protecting the privacy rights of their employees and their customers. It is a balancing act with competing interests: the company’s right to protect proprietary information and obligation to protect customer privacy, and employees’ rights to discuss working conditions.

With the ever-changing landscape, employers should carefully craft their social media policies.  Employers may also want to consult with counsel before terminating an employee for conduct involving social media.

The online era arms small-business owners with myriad tools and information for finding and hiring employees. It can be tempting to scope out a potential employee’s social profiles, too. Yet using social media to dig up dirt on an applicant can lead to hiring mistakes and even legal trouble.

In 2011, the National Labor Relations Board (NLRB) increased its oversight activity relating to employer disciplinary actions for social media postings made by employees. HR Watchdog blogged frequently in 2011 on the NLRB’s activity in this area. 

Yesterday, the NLRB’s General Counsel issued its second report describing 14 social media cases reviewed by its office. The NLRB’s first report on 14 other social media cases was released in August, 2011. 

The purpose of this second report, as stated by the NLRB, is to provide further guidance to labor and employment law practitioners and HR professionals — many of whom grapple with how to handle employees who use social media to air workplace complaints or simply bad-mouth the company. 

Seven of these 14 cases involve questions about an employer’s social media policies. Five of the social media policies were found to be overly broad and unlawful. 

The problem occurs when a social media is written so broadly that it prohibits employees from discussing wages or working conditions. Employees, in both union and nonunion workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities, including discussing working conditions, pay or other work-related issues. 

If those discussions occur using social media accounts (such as an employee’s Facebook or Twitter account), the discussions may be protected under the NLRA.

The NLRB also stated that it intends to develop a practice of tracking all social media cases and developing a consistent approach. The Acting General counsel asked all regional offices to send cases which they believe to be meritorious to the NLRB’s Division of Advice in Washington, D.C.

The NLRB noted that its report represents its “interpretation” of the NLRA as it applies to social media communications and that some of these decisions are currently pending before the Board. The Board’s eventual determinations in those pending cases will provide further guidance as the law develops.

Do you have a personal account with Facebook, MySpace, Twitter or any of the other social media websites that have become so popular lately? Chances are you do. Or you will soon. The growth of social media sites has been nothing short of breathtaking. Here are a few statistics: