Legal decisions and court rules involving social media have increased rapidly as social media use has exploded over the past year. Companies are seeking to reduce the risks associated with social media use by their employees, while simultaneously using that same social media to sell products and services. As federal agencies (the FTC, SEC, and FINRA, for example) issue regulations governing usage, many private employers have also issued social media usage policies for their employees. These regulations and policies can be at odds with First Amendment rights, sparking some interesting decisions. Recent NLRB decisions on protected or concerted union activity via social media provide some guidance to both employers and employees.

On August 18, 2011, NLRB General Counsel Lafe Solomon released Memorandum OM 11-74 summarizing 14 social media cases investigated by his office pursuant to requests for guidance from NLRB regional offices. Most involved situations where employees were using Facebook or Twitter to discuss workplace concerns and the determining factor to trigger First Amendment protection as “concerted activity” remained the same — when employees were acting in concert with or on behalf of other employees the activity was protected, but not when the author was acting alone.

In four of nine Facebook/Twitter postings examined, the NLRB Memorandum found the activity was protected because the postings pledged to raise the issue with management. Five other Facebook/ Twitter postings were unprotected activity because they involved complaints on tipping or about manager treatment that did not seek to engage other employees to take action. Several of the cases involved employer social media policies that had categorical bans on depicting the employer in the media without advance permission, or that banned “inappropriate” postings that an employee would not want their “manager or supervisor to see.” Such policies were found invalid because they threatened protected employee rights under Section 7 of the NLRA. The NLRB Memo also addressed a union’s posting of a video of union officials questioning non-union workers about their immigration status, and found such actions to be unlawful coercive conduct in violation of Section 8(b)(1)(A) of the NLRA. The full memorandum is available at: http://www.nlrb.gov/publications/operations-management-memos.

These days, savvy litigators use social media to research parties, witnesses, jurors, and even judges. We urge practitioners to check the applicable ethical rules for guidance on how to ethically conduct such research since it varies among jurisdictions. Many state and federal courts now admonish jurors not to conduct Internet research, or discuss a pending case on social media, as such activities may lead to criminal penalties.

On August 5, 2011, the California legislature expanded criminal penalties for juror misconduct to include potential jail time for jurors who conduct Internet research or use social media to discuss their pending trial. A.B. 141, as signed into law, available at http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0101-0150/ab_141_bill_20110805_chaptered.pdf. Many states have amended their civil rules’ preliminary instructions to forbid Internet research, and in some cases, also social media discussions about the pending case during their jury assignments. See, e.g., Ariz. Jury Instructions (Civil) Prelim. No. 9 (Jan. 2005); Judicial Council of Cal. Civil Jury Instructions, Prelim. No. 100 (Dec. 15, 2009); Ill. Pattern Jury Instructions - Civil, No. 1.00 (May 2009); Ind. Jury Rules amended Rule 20 (March 2010); Mich. Ct. Rules amended MCR 2.511 (June 2009); Miss. Civil Jury Instruction 2.01 (Nov. 2009); N.Y. State PJI 1:11; Wisc. Jury Instruction - Preliminary Criminal (Dec. 2009). Other states have such amendments proposed but pending approval. See, e.g., Florida Civil Rules, proposed Prelim. No. 1.0; Ga. Civil Rules, proposed Prelim. Instructions.