By: Ethan Wall
Let’s face it: your employees sometimes post things on social media that might be embarrassing, harmful to your company’s reputation or could get you in serious legal trouble. Sometimes their social media posts are so egregious or outlandish that you feel you’re left with no choice but to take action against them. But you might be unsure what laws might govern employee social media speech and whether you’d be violating them if you disciplined or fired someone over their social media posts. Let’s explore this topic.
The Scenario
Bob is one of your employees. And he’s a real pain in the neck. Bob is the type of employee who has an opinion about everything (fantasy football, problems with fellow employees, the weather) and he freely shares it. So, when Bob believed that his co-workers had been calling in sick too often, leaving extra work on his plate, he marched into your manager’s office to complain.
When Bob felt your manager didn’t address the situation to his liking, he voiced his displeasure about your company and his manager on Facebook. Bob complained about your working conditions, the manager’s failure to punish employees who repeatedly called in “sick” and threatened to continue posting negative comments unless the situation improved. Bob “tagged” a few of his co-workers on his Facebook post. Some of them joined the discussion. Other co-workers “liked” Bob’s Facebook activity.
Your manager catches wind of Bob’s Facebook rant, storms into your office and demands that Bob be fired immediately. Your manager makes a persuasive case that this behavior could hurt company morale, reflect poorly on the company and scare away customers if it continues. So what do would you do?
Before you consider firing Bob, let’s explore the law that governs your his online speech and the consequences for violating the law.
The Law
The National Labor Relations Act (NLRA) protects certain employee activities against employer retaliation in the United States. Generally speaking, most private section employee activity, including online activity, is protected when two or more employees act together to improve their terms and conditions of employment. However, not all employee social media activity is protected under the NLRA. Employees will not receive protection under the NLRA unless their conduct is both “protected” and “concerted.” Let’s take a closer look into what that means.
What is Protected Social Media Activity Under the NLRA?
Section 7 of the NLRA affords employees the right to discuss their terms and conditions of employment, both among themselves and with non-employees. The law applies equally to traditional offline communications and conversations via social media, including blog posts, tweets, Facebook comments and other forms of social networking. For example, Bob’s Facebook message to his colleagues about your company’s working conditions may be afforded the same protection as a group of employees who discuss corporate wage issues during the workplace lunch hour.
An employee’s social media activity is not protected under the NLRA if it does not seek to involve other employees, does not relate to the shared terms and conditions of employment or is an activity that is otherwise carried out in a reckless or malicious manner. Social media activity that is not protected could include Bob’s online communications unrelated to the terms of employment, posts protesting the quality of services provided by your company that are only tangentially related to employee terms of employment or expressions of his own individual gripe.
What is Concerted Social Media Activity Under the NLRA?
An employee generally engages in concerted activity when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. The test to determine whether an employee is engaged in concerted activity is whether the activity is engaged with or on the authority of other employees. Concerted social media activities may consist of two or more employees addressing their employer about improving their pay; discussing work-related issues beyond pay, such as safety concerns; or Bob discussing his fellow employees’ shared concerns about terms of employment.
When an employee expresses his concerns on social media without seeking to induce group action, the activity may not be protected even if it is published to fellow employees. Social media activities that may not be deemed concerted include Bob’s posts that contain no language suggesting that he seeks to initiate coworkers to engage in group action, posts expressing frustration regarding his individual dispute, and discussions expressing his individual discontent about your company where fellow employees merely “like” the post.
When Does an Employer Violate the NLRA and What Are the Consequences?
An employer violates Section 8(a)(1) of the NLRA if it interferes with, restrains or coerces employees in the exercise of their rights guaranteed in Section 7. An employer may unlawfully interfere with its employees’ Section 7 rights by disciplining or terminating an employee for engaging in Section 7 activities, threatening to sue employees for engaging in protected activities or discharging an employee to prevent future discussions of terms and conditions of employment.
If you terminated Bob for engaging in protected social media activity, he may file an unfair labor charge against you. Should it be determined that you committed an unfair labor practice by interfering with Bob’s Section 7 rights, you may have serious remedies imposed against you, including reinstatement of Bob’s seniority in the workplace, reinstatement of his benefits and an obligation to shell over all of his back pay. You might also be responsible for his attorneys’ fees.
So Now What Would You Do?
Since the NLRA imposes serious consequences for violating its provisions, it would be wise not to fire before conducting a full investigation into whether his posts are protected under the NLRA. In the future, you may find that taking a more proactive approach through the implementation of a social media policy and training Bob and others employees on responsible social media use may prevent this situation from occurring in the first place.
Ethan Wall, Esq. advises large and medium sized businesses on social media legal issues through his consulting business, Social Media Law and Order. He is also an adjunct professor at Nova University in Davie, Florida, where he teaches a class on social media and the law. Ethan has written three books including Fire Over Facebook? And The Social Media Guide for Lawyers. He can be reached at ethan@socialmedialawandorder.com.
