You might think that there should be consequences if an employee bad mouths the company, uses foul language to describe a supervisor, or posts embarrassing photographs or comments about the company on Facebook. You might also believe that the company is well within their right to reprimand, discipline, suspend or fire the employee for this type of social media content. You might even think that there is no way the law could provide employees with the right to unabashedly tweet about internal workplace disputes. But you might want to think again.
First of all, you can terminate an employee who violates the law. So, if the employee defames one of your employees or your business by statements the employee makes on a social media post like Facebook, then you may be able to terminate the employee. The same is true if an employee harasses another employee or violates an Anti-Harassment Policy by creating a hostile work environment by their comments or pictures they post on Social Media Girls.
However, employers must be aware that certain social media activities are actually protected against employer retaliation. The fine line that employers must walk separates mere personal gripes about the workplace that generally can result in employer discipline from the National Labor Relations Act (NLRA) protected “concerted activity” that cannot be the subject of even threatened discipline.
Distinguishing between protected and unprotected activity is not an easy task. Section 7 of the NLRA affords employees with the right to discuss their wages and other terms/conditions of employment, both among themselves and non employees. “Concerted activity” occurs when: 1) union or non union employees get together to discuss wages, hours, or other working conditions; 2) one or more employees threaten or suggest group action; or 3) on or more employees voice concerns-safety or comparable topic – that impact or concern a larger group of fellow employees. This can be accomplished on social media simply by several employees having a conversation on Facebook.
An employee’s social media activity will not be protected under the NLRA if it does not seek to involve other employees, does not relate to the shared terms and conditions of employment, or is an activity that is otherwise carried out in a reckless or malicious manner. Expressions of an individual gripe and activity that does not seek to involve other employees in issues related to the employment (otherwise known as “concerted” activities) will not be protected.
Although it is difficult to suppress that knee jerk reaction to terminate when disparaging comments are posted, employers must take the proper precautions. Specifically, companies should make sure they have a well drafted social media girls and boys policy that sets forth in clear terms what employees may or may not do and the consequences for violations of that policy. In addition, these policies must be very specific and not overly broad. Companies, including Costco and EchoStar, have had their social media policies invalidated in court. Companies should consult with their in-house attorneys and compliance departments to fully understand the application of the NLRA to their business and the applicable laws within their jurisdiction.
Negative comments are always a pain to deal with, and the problems only compound when those comments come from an employee or associate of your business. Even though it might feel a bit good to call that someone who bad mouthed your company into your office to fire them, remember that if proper precautions are not taken, the next question you may be asking is, “How much will it cost to resolve this wrongful termination lawsuit?”
For the positive side of Social Media check out our article on recruiting on Tik Tok.
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