Employment Complaints and Social Media

The internet has created a gray area for employment complaints, union activities, and labor disputes. Companies must confront the challenge of how to protect their public image without infringing on employees’ rights. This post will explain the federal law that protects employees’ rights to discuss employment contracts, discuss some relevant cases to shine light on legal precedent, and explain how employers can carefully navigate the issue.

National Labor Relations Act

The National Labor Relations Act (the Act) provides a legal framework for union activities and collective bargaining agreements and protects the rights of non-union employees. The National Labor Relations Board (the Board) is the federal agency responsible for interpreting and applying the Act.

Employees have a right to act together to advance and protect their interests, such as trying to improve working conditions, wages, or other terms of employment. They can do so with or without a union. Section 7 of the Act states that employees have "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." In Section 8, therefore, employers are prohibited from attempting to coerce, restrain, or otherwise interfere with employees’ exercise of those rights, which includes terminating employees who engage in protected “concerted activities.”

The Internet Challenge

The internet, specifically social media, has changed labor relations and therefore receives much of the Board’s attention. The Act, which dates back to 1935, does not include internet-specific provisions, but the “concerted activities” protection has been extended to internet communications. Section 7 activities are traditionally understood to occur within the workplace, such as in the break room or around the water cooler—which is why they are sometimes referred to as water cooler conversations.

The difficulty of the internet is that when those water cooler conversations are taken online, they often occur outside the workplace and can be read and participated in by a much broader audience. As such, they have the potential to cause far greater harm to employers.

Relevant Cases

The Board’s first decision regarding discipline for social media activity was issued in 2012. An employee posted photos of an embarrassing workplace accident not involving fellow employees. The Board upheld the company’s decision to terminate the employee. The key aspect, as is usually true with these kinds of cases, was “concerted activity.” This employee’s social media post was damaging to the company but did not include attempts to improve workplace conditions or otherwise communicate with coworkers.

In one case, the Board voted to reinstate an employee who had been discharged for a Facebook post encouraging a former coworker to sue the company. The exchange went something like this: the former employee posted that she believed she had been unjustly terminated. The still-employed worker replied with sympathy and a suggestion that the former employee could get a lawyer and take the employer to court and/or contact the labor board. The company’s social media policy stated that employees must refrain from using social media to discredit the company or damage its image. The Board found that the policy language was too restrictive of employees’ rights to discuss employment contracts online, and therefore violated the ACT. Further, the Board sided with the employee because the exchange was a “concerted activity” for the employees’ “mutual aid or protection.”

In another case, an employee made several comments on Facebook regarding workplace accidents and soliciting ideas from coworkers for how to improve workplace safety. The posts were critical of the employer, and in some cases, coworkers; the employee was terminated as a result. The Board determined that the employee’s comments were protected by the same NLRA provision that employees can engage in “concerted activities” for their “mutual aid and protection,” and that the employee should be reinstated.

Social Media Policies

One way that companies can protect themselves from trouble with the Board is by paying careful attention to their social media policies. In the case above (and many other cases) the company’s policy wording was too broad, resulting in the Board’s determination that it was overly restrictive of employees’ rights.

Policies should not be so broad that they prohibit activity that is protected by federal law, such as discussions between employees regarding working conditions or wages. Employees’ social media posts are only protected if they are made in connection with group activity among employees; mere complaints, criticisms, and other disparaging comments are generally not protected.

Conclusion

The Board often sides with employees due to the NLRA’s explicit protection of employees’ “concerted activities.” Employers must be cautious when deciding whether a social media post or comment provides legitimate grounds for employee discipline or termination, even when the employee is critical of the company. Companies can also protect themselves by being very careful and specific in their social media policies. Before an issue arises, organizations should consider consulting with an attorney to confirm that company policies and practices are in compliance with the law.

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Featured Image by Rebecca Sidebotham.