Employers’ Social Media Use Policies and Their Enforcement May Violate Federal Law

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Bad news travels fast, especSocial Media Use Policiesially on social media. Posts can easily and quickly spread across the globe and be seen by millions of people. This is one reason why employers seek to control what employees write publicly about their businesses on the Internet. There are legal limits on what employers can try to suppress, but employees’ protections are not without limits either.

How the Law Protects Employees’ Use of Social Media

The National Labor Relations Board (NLRB), the federal agency charged with enforcing labor law, has long taken the position that employees have a right to discuss wages and conditions of employment with third parties and each other. The NLRB has also ruled that policies preventing the communication of confidential information without exempting information concerning terms and condition of employment can inhibit this right. These protections exist regardless of whether employees belong to a union.

The use of social media to discuss the terms and conditions of employment can be a form of “protected concerted” activity, according to the NLRB.

  • You can address work-related issues and share information about pay, benefits, and working conditions with co-workers and others on social media.
  • Griping about some aspect of your work may not be “concerted activity” or be protected by law. There must be some connection to group action by employees: they must seek to initiate, induce, or prepare for group action, or they could bring a group complaint to the attention of management.

The Limitations of the NLRB’s Protection

Employees should avoid posts that:

  • Damage a company,
  • Criticize its products or services,
  • Reveal trade secrets or financial information,
  • Encourage insubordination,
  • Provide information about clients or customers, or
  • Are racist, homophobic, sexist, or biased against a religion.

Companies could fire employees who write posts on these topics because otherwise, the company could be viewed as tolerating or condoning the employees’ views.

The NLRB’s Balancing Act

Social Media Policies balanceNLRB Operations Management Memo issued in 2012 emphasized two main points in 14 cases concerning employers’ enforcement of social media policies and employees’ use of social media.

  • Employer policies cannot be so broad that they prohibit activities protected by federal labor law, including discussions of wages or working conditions by employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

One example of the balancing act between employee and employer rights when it comes to social media is the NLRB’s decision involving the case of the Triple Play Sports Bar and Grille of Watertown, Connecticut. The employer has filed an appeal of the NLRB’s August 2014 decision in favor of two fired ex-employees in the U.S. District Court of Appeals for the Second Circuit.

The bar fired two employees because of a Facebook discussion about the bar and problems employees were having with tax withholding. A number of employees complained about owing taxes, so their employer arranged a meeting with the bar’s payroll service. Prior to the meeting, a former employee posted the following message on Facebook:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!

Posts containing profanity and criticism of the bar ensued, including one post by a current employee referring to the bar and its co-owner:

I owe too. Such an asshole.

Another employee didn’t write any posts but “liked” one that said:

It’s all [co-owner] Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.

When the bar owners learned of the discussion and the actions, they fired the employees and threatened to file lawsuits alleging defamation against them.

The bar owners didn’t dispute that the Facebook activity was concerted or that the fired employees had a protected right to engage in a Facebook discussion about the tax-withholding problems. They argued that due to these Facebook posts, the employees adopted defamatory and disparaging comments and lost the protection of the law. They claimed the posts were made in a public forum that undermined the owners’ authority and adversely affected the bar’s public image.

The NLRB ruled that the Facebook discussion would be similar to a discussion in a public place that others could overhear. Therefore, it was protected by the law. There was no criticism of the bar, its services, its drinks, or its food. Instead, the critical statements focused only on the actions of the owners, who were accused of incompetence, not profiting from the tax problems. Therefore, the NLRB ruled that the employer could not meet its burden of showing the comment and the “like” were defamatory.

The NLRB also found the bar’s social media policy too broad. The policy provided:

[W]hen internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extent to employees…engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.

The Board ruled that the policy could chill protected concerted activity by employees. It also found that the firings violated federal labor law.

The bar owners were ordered to change their policy, rehire the two employees, and pay them damages due to the illegal firings.

What to Do If You Have Questions About Social Media

If you have questions about social media use and its impact on your job, or if you’ve been disciplined or fired due to your postings on social media, contact our office so we can talk about the situation, the laws that apply, and what actions you may be able to take.