It seems sensible that you ought to be able to prevent your employees from making negative comments about your company – or other employees - on social media like Facebook and Twitter. However, the National Labor Relations Board (NLRB) has recently issued several precedent-setting rulings and advisories that have redefined how employers can act to discourage or restrict certain types of expressions online. Sometimes these judgments are hard to predict, or even seem to conflict with other laws. You need to stay on top of these rulings to avoid potentially costly litigation and adverse rulings against your company.
In some cases, the Board upheld terminations; in other cases, the Board ruled against employers. The key issue boiled down to whether the employer’s actions compromised the right of employees to engage in "protected concerted activities" for the purpose of their "mutual aid and protection."
Here are quick summaries of a few of these judgments, to give you a sense of how that distinction operates:
What Do I Do?
- Employee Facebook posts that criticized a manager’s handling of employee concerns about the closing time of the store where they worked were a "classic connected protected activity" under the National Labor Relations Act (NLRA). Subsequent firings were ruled unfair labor practices.
- Likewise, the NLRB held that five employees who posted angry comments on Facebook about a co-worker who complained about their performance were engaging in “concerted’ activity protected under the NLRA. This is especially notable because the speech protected under the ruling potentially violates other federal and state laws designed to prevent workplace harassment or bullying!
- On the other hand, the Board held that the firing of a police reporter who tweeted offensive comments about the lack of homicidal activity overnight, and that of a bartender who made disparaging remarks about customers, were both legal because they were personal venting and not “concerted” in any way.
We recommend the following:
- Review and revise your social media polices to reflect the key test of the recent rulings: that you do not restrict employees’ rights to engage in protected, “concerted” activity.
- Train your managers in using the new policies.
- Before disciplining or terminating any employee based on social media use or abuse, you may need to consult an HR expert or attorney to make sure you are not basing the decision on protected activities.
If this all seems a little overwhelming, Century II can help. If you have any questions or want to discuss these issues further, don’t hesitate to contact us
or call (615) 665-9060.