Monday, October 10, 2011

Social Network Postings Are Likely Discoverable in Litigation.

As Chair of the Orange County Bar Association Labor & Employment Law Section, I oversee monthly topic presentations for our members.  This month [10/10/11] the topic was using Facebook, Twitter, LinkedIn and other social media postings as evidence.  I've written on this subject in my previous blog entries.  The bottom line:  Courts are tending to allow discovery of postings if the targeted posts are described in such a way as to be relevant to an issue in the case.  

I've also written about the administrative rulings of the NLRB (National Labor Relations Board).  These rulings, applicable to both union and non-union employers, prevent employers from punishing employees who engage in "concerted activity" to address grievances concerning the "terms and conditions of employment."  Bottom line:  even strongly worded language that a manager could consider insulting or insubordinate will be protected if it addresses a workplace condition or management behavior, and could lead to organized labor efforts to address the condition.  However, there are two considerations:  Is the communication among co-workers?  If not, the "concerted acivity" cannot apply.  Secondly, is the subject of the posting on point with "terms and conditions?"  If employees attack management without reference to addressing a term or condition of work, the "concerted activity" cannot apply. 

So, terminating an employee engaged in a "concerted activity" by his or her posting could very well trigger a lawsuit for "wrongful termination in violation of public policy" based on the National Labor Relations Act even if the employer obtained access to the posting legally.  [The "Store Communications Act (SCA) may be implicated by an unauthorized access by an employer of an employee's electronically stored information on a third party server.]


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