A Thai truck driver was given a 20-year prison sentence last week for allegedly sending texts that insulted the king, but in the United States you can't even fire an employee for calling a supervisor a "scumbag" on Facebook. The legal landscape surrounding employee use of social media is fuzzy and evolving, but the National Labor Relations Board is making it increasingly clear that employers need to think carefully before taking action when workers disparage the business or the boss on social networks.

The "scumbag" incident, which involved an ambulance service that was ordered by the NLRB to reinstate the employee, is enough to give any employer pause. It does not mean, however, that anyone can write anything about their companies and supervisors on Facebook and get away with it.

The NLRB has sided with employers in a number of Facebook-related cases, including one in which a bartender called customers "rednecks" and one in which a Walmart worker called a manager a "super mega puta."

The years ahead are sure to witness a flurry of new legal precedents regarding social media use rights, but for now the NLRB's position on a dozen or so cases provides an initial framework for companies to consider. Whether an employee can disparage the business on social media has less to do with what is posted than with the context and circumstances.

Employees generally have the right to discuss terms and conditions of employment (such as workload and staffing levels) with each other, so if a social media exchange involves more than one employee and covers those topics, it may be considered concerted activity that is protected. If postings don't involve more than one employee and if they simply reflect one employee's opinion or gripes, the NLRB is more likely to side with the employer. A bartender discovered this after calling customers "rednecks" in an exchange with his stepsister on Facebook. 

Many of the cases the NLRB has reviewed focus on the employer's social media policy, and this is one area in which the board appears to be making a very clear statement. It is important to have a policy in place, but it must not be so broad as to restrict activity protected under the National Labor Relations Act, such as discussions about work conditions, wages, terminations or even disparaging comments about managers. If a policy can be reasonably interpreted to restrict concerted activity regarding employment terms and conditions, a company is likely to end up on the wrong side of the law.

Based on the NLRB's decisions so far, there are a couple guidelines employers can follow when crafting social media use policies. Be sure to include language that makes it clear that restrictions on social media use do not apply to protected activity. Include an explanation of the purpose for the policy so it is clear that it is not meant to restrict employee discussions of work conditions. Finally, it can be helpful to offer examples of what kind of postings are restricted.

To date, the NLRB's positions tend to treat social media communications much like offline communications. If something is posted on Facebook, in other words, it is viewed much like a discussion around a water cooler. I'm not sure courts are going to take this same view, however, as the nature and power of social media become better understood. Whether a Facebook post involves other employees, for example, can be a matter of whim or impulse rather than concerted action. Whether a post reflects an individual's gripe or a collective concern also may come down to an arbitrary determination. Social networks are not like a water cooler, and eventually the law will have to reflect this.

For now, however, it makes sense to play it safe and bear the NLRB's decisions in mind when refining your social media policy. - Caron