As social media sites gained popularity, employers often
disciplined or terminated employees who made negative remarks regarding their
workplace online. In fact, many
companies instituted policies that specifically limited the kind of information
that employees could post on their personal social media profiles. Violating these policies has resulted in
terminations, and many former employees have brought cases claiming they were
wrongfully terminated in violation of their rights to free speech.
Traditionally, employees have had the legal right to discuss
workplace matters or express dissatisfactions with one another. This type of expression used to happen in
company cafeterias or at work happy hours, however in recent years, social
media has largely become the new “water cooler.” Many Americans who have social media profiles
are connected or “friends” with fellow co-workers online. Often times, one disgruntled employee may complain
about the workplace on a status update and other employees will chime in by
commenting or re-posting. This situation
has become commonplace. However, a large
number of companies had put in place social media policies that generally
prohibited employees from discussing company matters or from making disparaging
comments regarding the company, managers, or co-workers online.
Recent NLRB Advice
This situation is illustrated by a recent case examined by
the National Labor Relations Board
(NLRB) regarding
employees of a non-profit company in New York.
One employee had taken to Facebook to complain about working conditions
and several other colleagues posted angry comments in agreement. The company fired five of the employees
involved for the Facebook activity. The
NLRB found that the employees were wrongfully terminated for concerted activity
that is protected by the National Labor Relations Act (NLRA). Even though these employees were not in a
union, the NLRB said these protections expand to non-unionized private sector
employees, as well.
The NLRB issued an advice memo that seems to apply traditional
rules of what employees may or may not say to online territory. The NLRB warned companies that overbroad
social media policies will infringe on employees’ rights to criticize work
conditions or treatment of employees.
For example, General Motors’ policy prohibited “offensive, demeaning,
abusive or inappropriate remarks,” and Costco’s policy disallowed any comments
that “damage the company” or “any person’s reputation.” The NLRB found that such policies prohibited
a broad spectrum of possible online communications that employees have the
right to engage in under the NLRA.
Furthermore, companies cannot simply disallow the posting of
“confidential information,” without further specifying which types of
information are considered to fall into that category. Instead, the policy should state exactly what
kind of information is prohibited, such as trade secrets, client information,
unreleased product information, or private health details.
Many companies are complaining that the NLRB is applying concerted
activity rights typically associated with unions to the private sector in
general, however the NLRB responded that all employees have these free speech
rights and the rights to converse with fellow co-workers regarding their
employer. These rights do not change
simply because the conversation takes place online and not in person.
If you believe your employer has infringed upon your social
media rights, contact Pershing
Square Law Firm today.
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