There is an unpleasant scenario that is becoming familiar to more and more employers:
You’re on Facebook and you happen to notice that one of your employees has written a comment about how they dislike the company’s new dress code. In fact, they think it’s really unfair that the company has made these changes and they’re really very unhappy about it. Several other employees quickly chime in with their own gripes about the dress code, and a heated discussion ensues.
You feel like the company’s reputation is being harmed by the conversation, and the information being discussed in this public forum is confidential to your business. Can you discipline your employee?
The National Labor Relations Board says NO!
Employees have the right to discuss working conditions online:
Your employees are exercising their rights to discuss working conditions, a protected concerted activity. The National Labor Relations Board (NLRB) has deemed these to be akin to “water cooler conversations” that might take place in the office. They see little difference between social media “conversations” and employees’ face-to-face conversations.
The National Labor Relations Act applies to all workplaces, not just unionized ones:
Many employers think only unionized workplaces are governed by the National Labor Relations Act (NLRA). But the truth is, all employees have rights under the NLRA, and that’s where protected concerted activity comes in.
- Your employees are protected when two or more employees address pay issues, discuss work-related topics such as safety issues with each other, or when one employee speaks to their employer about workplace conditions on behalf of other employees.
- Employees exercising their rights under the NLRA cannot be fired, demoted, transferred, or have any adverse action taken against them.
Social media and protected concerted activity:
Social media has turned protected concerted activity on its head.
Obviously, it’s one thing when an employee or two sit down in the office to talk about their pay or their concerns about safety, and it’s another issue entirely when those concerns are published on a Facebook page or Tweeted to hundreds of followers!
Social media is a wild and woolly new frontier, which is still being explored in a legal arena–but the NLRB has started to define it for employers. It’s quickly becoming clear that employers’ social media policies must not be overly restrictive, or they will not hold up in court.
Here’s what companies can prohibit employees from writing online:
The NLRB recognizes that employers have the right to protect the company’s confidential and proprietary information online. Companies can also prohibit employees from using vulgar or obscene language when talking about coworkers or the company.
It is also permissible to prohibit the use of social media in ways that would violate certain company policies and put the company at risk for discrimination claims. For instance, employees cannot make posts about coworkers that are in violation of the employer’s policies against discrimination, harassment or hostility based on a protected class (such as race, religion, sex, ethnicity, nationality, age, disability, etc.).
However, any broad prohibition against employees discussing their jobs or their employer on the internet will not hold up under legal scrutiny.
The bottom line for the NLRB is that an employer cannot have such a broad policy that it prohibits any activity that’s protected by federal labor laws. But if an employee just wants to generally gripe about their employer on a public forum, and their complaints are not made in relation to protected activity amongst a group of employees (a group can be as small as two people), their comments online may not be considered a protected activity.
Clearly, this is a troublesome gray area that employers will be struggling to navigate through for many years to come. Our best bet right now is to enforce thoughtful, nuanced policies that respect current laws, and to keep a close eye on the outcomes of these kinds of court cases.