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Unsocial Media: When Your Employees Vent What Can You Do?

May 11, 2015

Posted in Business Litigation, Business Start Ups, Employment Law

photo - unsocial media by Automotive SocialSocial media contains a flood of people venting their views on every topic imaginable, including work. Though it’s not a good idea, employees often use social to vent their frustrations and dislikes about their job, co-workers, bosses and customers. If you learn of critical posts by employees about your business or its management, what can you do? Like just about every other legal situation, it depends on the circumstances, according to the New York Times.

The federal National Labor Relations Board (NLRB), which regulates the area of collective bargaining and union activities states,

  • Workers’ rights to post about working conditions (even if it’s angry and insulting) is generally protected.
  • It’s illegal for you to fire an employee because of a post about working conditions, pay, hours, assignments, difficult supervisors, dress code, or any other issue related to working conditions.

Workers who complain can’t legally be fired if they’re involved in concerted activity (joining co-workers to improve working conditions), according to the NLRB. One of their 2014 decisions shows how broad employees’ rights are to make such critical posts.

  • The agency ruled a restaurant illegally fired two workers for participating in a Facebook discussion of problems in income tax withholding.
  • The discussion mentioned a meeting of workers about the issue.
  • One employee was fired for an expletive containing comment about one owner and another employee was dismissed for “liking” a post critical of the business.
  • Because the posts concerned working conditions and the employees discussed jointly seeking a resolution of their problems, the posts were protected by the law.
  • The NLRB reversed the firings.

Other disciplinary measures are also off the table including suspensions, reprimands, pay cuts or promotion denials.

But that doesn’t mean employees can post anything online without repercussions. The NLRB will likely uphold firings and other discipline concerning posts,

  • Damaging to a company,
  • Encouraging insubordination by fellow employees,
  • Containing information about clients or customers,
  • Disparaging its products or services,
  • Insulting another employee,
  • Having no connection to working conditions,
  • Revealing trade secrets or financial information, or
  • That are racist, homophobic, sexist or show a bias towards a religion.

There may be gray areas where there’s a mix of protected and unprotected speech, such as a post criticizing a company’s services but also discussing working conditions. You can find out more about the NLRB’s position on social media postings on their website.

Your company should issue a detailed, written social media policy stating what can be posted containing examples of what’s acceptable. Once it’s made clear what the rules are and you can show the employee has notice of these rules, by following your disciplinary procedures it may be easier to defend legal challenges to discipline issued to an employee who violates the policy.

If you want to learn more about keeping your business out of legal trouble, contact my office so we can talk about your concerns, the laws that apply and the steps you should take.