Over the last few months, the NLRB has responded in several instances after employees were terminated because of their activities on social media sites such as Twitter and Facebook. (To read more about the Board’s responses, see “Recent NLRB activity.”)
While employees have always discussed their employers and jobs at the local bar or watering hole, “it’s now easier for employers to find out what employees are saying about them,” said Boris Segalis, a partner at the InfoLawGroup LLP in New York City.
And when employees complain via Twitter about their supervisor, or criticize the choice of food at a work-sponsored event on Facebook, they may be engaging in activity protected by federal law, according to the NLRB.
These actions are a result of “a convergence of several factors, with the increasing adoption of social media, the fact that employers are still getting a grip on employee usage of it and the NLRB deciding to take a more aggressive stance,” said Daniel Schwartz, a partner at Pullman & Comley in Hartford, Conn. “There are almost 700 million people on Facebook – at least a few of them are going to be union members.”
With social media in the sights of the NLRB, employers should review their policies and think carefully about enforcement, Schwartz said.
“Right now, there have been a bunch of complaints, and we’re still waiting for some judicial or Board decisions addressing these issues,” he said.
Policy and enforcement
In light of the NLRB’s recent moves, experts agree that employers should have a social media policy in place, and that it should be reviewed in light of the NLRB’s recent moves.
“Involve the employees in the creation of the policy,” Schwartz suggested. “Let them feel like they have some input, and be sure to communicate the policy so everyone is aware of it.”
A policy should cover issues like protecting trade secrets, said Brian Hall, a partner at Porter Wright in Columbus, Ohio who focuses on employment law issues, but “it’s very clear that the NLRB is taking a negative view of any social media policy that includes non-disparagement type language in it. So if employers are creating a policy right now, they should avoid using that type of terminology.”
He counsels clients who have disparagement clauses in their social media policies to add a disclaimer that “the policy will not be interpreted or enforced in a manner contrary to your ability to [exercise] your rights under the NLRA.”
Just as important as having a policy in place is enforcement, Hall said, and “being realistic about it.”
“Decide discipline on a case-by-case basis,” he said. “Not all tweets are created equal, and not all uses of Facebook should lead to being fired.”
Employers who overreact to an employee’s social media usage could end up with their punishment going viral, Schwartz said. “Employers need to be careful not to overreact about social media.”
And keep in mind that the enforcement actions “don’t mean that employees can say anything they want about the employer,” Segalis noted. “Employees can’t defame a supervisor or use slurs, or make false or defamatory statements, and if they lash out at a supervisor but aren’t communicating with other employees then the statements are likely not protected.”
But the NLRB has taken a broad approach to what constitutes protected, concerted activity, Segalis said.
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