Law Firm Social Media Policies: Subtle Warning in Facebook Firing Case

On Wednesday, The Wall Street Journal reported a settlement in the Facebook Firing case. This suit drew attention as a potential test case for the latitude employees may have when posting comments on social networking sites about work matters from their home computers.

The original complaint by the National Labor Relations Board (NLRB) against American Medical Response of Connecticut, Inc., alleged an employee’s discharge violated federal labor law because the employee was engaged in “protected concerted activity” when posting and responding to comments about her supervisor on Facebook. The terms of Wednesday’s settlement forced revisions to the company’s social media policy.  

Why should law firms closely heed this result? The NLRB claim also alleged that the company maintained “overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees…”

There are still many law firms with no social media policies. Some even believe (falsely) that their attorneys and employees aren’t actively participating in social networks at work, and that the firm’s policies don’t apply to at-home use. Other firms hurriedly assembled umbrella policies with general and far-reaching guidelines. 

So your firm already has a social media policy in place? Don’t relax yet, because the “overly broad rules” language in the NLRB complaint could shape future legal actions. Additionally, as many firms only developed Band-Aid policies, the minimal protection they had just got more limited.

For fun, let’s add another level of risk for law firms—individual State Bar ethics and advertising rules. Right now these rules are varied, non-uniform and in many cases conflict between states. 

What’s the take away from this case and the uncertainty of future similar cases? 

If your firm hasn’t already done so, put a thorough and clear policy in place and communicate that policy to all of your employees. If you have one in place, review it. Often. Technology and the human element are constantly changing and today’s policy may not hold the same degree of protection this time next year, or next month.

As it relates to State Bar ethics compliance, this is an ongoing saga not likely to be resolved anytime soon. Firms should address the relevant states’ rules in their media policies and include a review of the content of websites, blogs and other electronic communications to ensure compliance.