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Minnesota companies face social media challenges

The proliferation of social media poses legal and personnel challenges for Minnesota employers, and potentially grounds for employment disputes. A worker's right to self-expression may conflict with the employer's interest in preventing criticism of its products and services, and protection of its reputation.

The National Labor Relations Act guarantees employees the right to self-organization and to engage in other concerted activities for their mutual aid or protection. Employers cannot interfere with, restrain or coerce workers for exercising these rights.

However, communications are not legally protected if they are sufficiently disloyal and constitute criticisms disconnected from any ongoing labor dispute. Statements that are defamatory and made maliciously with knowledge of their falsity or with reckless disregard are also unprotected.

The U.S. Second Circuit Court of Appeals recently ruled on the discharge of employees because of their Facebook activity and the employer's allegedly overbroad internet/blogging policy during an ongoing labor dispute over its tax withholding. One employee made a posting that someone should buy the business because the employer cannot do their tax paperwork correctly, that the employee now owes money and used a profane acronym. Another employee posted an obscenity directed to the business and also stated that this worker owes money because of the employer.

The Court ruled that an employee cannot express obscenities in front of customers. However, even though customers may see this posting, it was not directed to customers and did not reflect the employer's brand.

The Court also found that these postings were made to seek and provide mutual support looking toward group action, were not made to disparage the employer or to undermine its reputation and merely disclosed the ongoing labor dispute over withholding. The second worker's posting was not defamatory, even though she may not have believed that she owed taxes, because she may have believed the business may have mistakenly withheld other employees' taxes.

The Court also determined that the employer illegally threatened employees with discharge for their Facebook activity, interrogated employees about these activities and informed employees that they were being discharged for their Facebook activity. It ruled that the employer's internet policy could be reasonably interpreted by employees to proscribe any discussions about employment terms and conditions.

Source: The Employer Hanbook.com, "Triple Play v. National Labor Relations Board, Nos. 14-3284 and 14-3814 (2d Cir. Oct. 21, 2015)," Accessed Nov. 1, 2015

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