Several of my prior posts have discussed revising a company’s social media policy to create limits as to what employees may post online about the company and/or other employees. In this newly emerging area of law, early cases supported employer policies that prevented employees from posting derogatory or defamatory statements about an employer on social media, such as Facebook, Twitter and personal blogs.
As more cases are heard on the issue of what protections are afforded to social media speech, there appears to be a shift in rulings on cases involving companies’ social media policies.
The National Labor Relations Board (NLRB) has issued several rulings recently that uphold an employee’s right to discuss “work conditions” freely, without any fear of retaliation or retribution by the employer.
The National Labor Relations Act (NLRA) was enacted in 1935 as a federal law to protect employees in the private sector’s right to unionize, engage in collective bargaining and organize to discuss workplace issues. However, the NLRA is now being applied to social media activities of both union and nonunion employees. Many argue these activities were never contemplated by the drafters of the NLRA, and therefore, should not be applied to these types of online activities.
Based on the NLRB’s recent decisions, it seems to be making a distinction between activities that allow employees to voice their concerns about their employer or other employees, which it has upheld as protected speech, and activities that surmount to venting, name-calling or other non-productive collaboration, which has not been upheld as being protected.
For example, the NLRB held that an employee was unlawfully terminated after she posted a question to other employees on Facebook asking how they felt about another employee who threatened to complain to management that co-workers weren’t working hard enough. The NLRB found that the posting and related comments from other employees were “concerted activity” that is protected by the NLRA.
The NLRB has reviewed the social media policies of many large companies and suggested that many of them rewrite their current policies, including Costco, Target and General Motors. Their recommendations focus on avoiding general and broad policies so as to protect employees’ right to communicate with co-workers about working conditions.
Based on these recent rulings, employers should try to use specific language in revising their social media policies to prohibit specific speech (such as defamation) without prohibiting protected criticisms of the employer’s treatment of employees or policies.