Marshall Babson Quoted in Law360
"Cos. Must Turn Other Cheek Over Worker Facebook Rants"

Seyfarth Shaw Labor and Employment partner Marshall Babson was quoted in Law360 on June 16. The article discussed social media sites as a method for employees to vent and how employers should beware when reacting to an employee's complaints that are posted online.

As yet, the National Labor Relations Act (NLRA) does not provide clear guidance to employers on what is protected under the act as it applies to the internet.

Marshall commented, "To be covered by the NLRA, an employee's activity has to be protected and concerted." He explains that in this case, "concerted activity" is that which is undertaken by two or more people. He added, "I don't know how social media will fit into that definition…it may, in some ways, set slightly different boundaries or give us a different understanding of what it means to be engaged in a protected concerted activity."

In the case of an online back-and-forth that arises when an employee posts something online and someone else responds disagreeing with the comments, Marshall said, it would likely be protected under the NLRA, and employers looking to discipline the employee would be a "tough case." He noted this "underscores that there are a host of unanswered questions about the metes and bounds of protected and concerted activity in social media."

Marshall pointed out that there is no law against saying something unkind, and "employees have a fundamental right to complain about work and working conditions, including people with whom they work," making it "more challenging for people who have thin skins."