I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.

As this news video from CNN describes more and more people are blaming Facebook, Twitter, MySpace and other social networking sites for their divorces.

Although I would argue that these sites are simply an outlet for feelings that would otherwise have surfaced in another form, there is still a lesson to be learned here.

Assume that anything you write on the internet (whether on a "private" page or not) is going to be seen by everyone. It is not only discoverable (in the legal sense) but likely to be discovered or passed along or shared by family, friends, or other acquaintances.

We often warn our divorce clients that e-mails they send to their soon to be ex-spouses WILL show up in court. This is because it's almost impossible for two parties involved in an emotional dispute to write correspondence without overtones of disappointment, hurt or anger showing through in tone. This is even more likely in informal correspondence like e-mail.

The same is true for texts, especially now that texts are beginning to replace phone calls as the preferred method of quick short communications. According to this Huffington Post article, "Americans punched out more than 110 billion text messages in December 2008."

There are also significant domestic violence implications with text messaging. For instance, text messages are considered a communication and a violation of a restraining order, even if the victim sent a text message first a reply could result in an arrest and charge of violating a restraining order.

In addition, texts can be another way for abusers to track and control the lives of their victims. This article in the Patriot Ledger makes light of the Tiger Woods scandal and his immature texting, by noting how many wives and girlfriends check their significant other's phone history. This type of monitoring has a darker side when used by abusers.

No matter the context remember that what you put in writing, whether in e-mail, letter, facebook update, tweet, or even a text message leaves a record, and that record could come back to be used against you.

Thanks to DGVElaw for sending us the Patriot Ledger article.

At Kelsey & Trask, P.C. we recognize that the state-of-the-art technology affects not just the positive aspects of our lives but also the negative. For example, constant access to e-mail, facebook, twitter and similar services provides us with both ways to connect and ways to be distracted (as described further in this NPR article about cell phones interfering with marriages).

It is important therefore to make effective use of technology to help you in your divorce case and also to recognize how the use of technology could hurt your case. These new technologies can also be used to help us learn more about the statistics of divorce (as described in this article about the break-up trends displayed in Facebook posts). Below you can find some resources on our blog and website that deal with both the positive and negative impact of technology on divorce.

We have written many times on this site about the many ways in which Facebook, Twitter and other social networking sites are being used in Divorce cases:

- Facebook & Twitter causing Divorces?

- When a Tweet is a Threat

- Protecting your Privacy in a Divorce. Who has access to your mail, e-mail, etc.?

- 5 Worst Divorce Mistakes - Mistake #3: Telling the World your Side of the Story.

- When a Facebook Friend Request is Against the Law

We also use new technologies and social media to assist our clients (and other lawyers) in dealing with and helping to settle divorce cases:

- Waiting in line for the new iPhone? There's no wait (and no cost) to download our Apps!

- Latest iPhone App now available in the App Store: Alimony Calculator

- What is the Stevenson-Kelsey Spousal Support Calculator (now known as The Divorce Spousal Support Calculator)?

- Attorney's Kelsey & Trask on Twitter

- The Kelsey & Trask, P.C. Facebook Fan Page

- The Kelsey & Trask, P.C. Website Resources for Divorce & Mediation

We hope that our clients use these resources to make the divorce experience less traumatic but also take our advice on how to protect themselves when using these resources.

Following up on an earlier blog post discussing how contact through social networking websites, such as Facebook, may be an arrestable offense when there is an existing restraining order in effect, threats posted on social networking websites may also give rise to the issuing of a restraining order. In Arizona, an argument between two college students was escalated when one of the students wrote on his Twitter account that he would "not hesitate to punch [the other student] in the face if I saw him . . . Just sayin." The other student then obtained a restraining order because of the "tweet."

Regardless of whether the "tweet" was a legitimate threat, it is important to realize that writing something of that nature on a social networking website makes it possible that the individual to whom you are referring might read it, and might take it seriously. Be smart. Don't take your arguments to the internet. You are just documenting the "he-said-she-said," which could come back to haunt you.