The Acting General Counsel for the National Labor Relations Board (NLRB) released a new report Wednesday providing guidance on the rules employers are allowed place on employees when discussing work on social media.
The NLRB says that “employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.”
However, the labor agency continued saying, “an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activities among employees.”
So what can an employee legally post on Facebook, Twitter, or the web without facing punishment at work?
Eric Barth, an employment law attorney from Hinkle Law Firm, says communications are protected under the National Labor Relations Act when employees post on social media about the terms and conditions of their employment and when they seek to involve other employees about the impact to the work group.
“Simply because an employee’s conversation with another employee occurs via the internet or on Facebook does not loose its protection because it’s via social media,” said Barth.
Federal labor laws protect the right for employees to discuss work terms and conditions, including pay information, schedules, vacation time, unionizing, and other work conditions according to Barth.
In one example, the NLRB held that a woman was wrongfully terminated from employment after she posted a message on Facebook, using expletives, saying that her employer had “messed up” and that she was “done being a good employee.” The employee had been informed earlier that day she would be moved to a new department where she would make less money.
A number of other coworkers joined the conversation on Facebook saying they supported her. Another co-worker wrote that “the employer would rather pay the $9 an hour people and get rid of the higher paid, smart people.” A former employee suggested they sue the employer.
The employee who first posted the message on Facebook was later fired.
The NLRB ruled that the comments by the employee that had been fired and the discussion it generated was protected and “clearly involved complaints about working conditions” that encompassed a group of employees.
In contrast, the Labor Board held that the an employee’s Facebook comments consisting of an expletive and the name of the business, and a second post later saying that the employer did not appreciate its employees “were merely an expression of an individual gripe.” The comments were found not to be protected under labor laws.
The National Labor Relations Act was created by Congress in 1935 and applies to most private sector employees.
The law does not cover government employees, agricultural workers, people who work for their parents or spouse, people employed in domestic service, an independent contractor, a supervisor, and employees that work for a business subject to the Railway Labor Act, such as railroads and airlines.
Complaints can be lodged directly by an employee through the regional NLRB office or by an attorney. The closest regional office is in Kansas City.
Protected speech under the law must also involve more than one employee.
“In situations where the employee was simply griping or complaining about their employer without trying to prepare or induce group action, the communication is not covered,” said Barth.
The NLRB has also noted that social media policies that prohibit employees from making “disparaging comments about the company through any media, including online blogs, other electronic media or through the media,” were unlawful. The Board held that an employee could reasonably construe the policy to restrict their rights under the National Labor Relations Act.
At this point the law has not clearly explained what needs to be in social media policies to be compliant. The NLRB has suggested a social media policy should contain limiting language to clarify that the ban on negative comments does not include or restrict rights under the National Labor Relations Act.
“An employer has interest in maintaining discipline and protecting its good name,” says Barth. “But they cannot make a policy so overly broad to chill the protected activity.”
Barth points out that this area of law is new and still developing. Most cases involving social media have faced a trial at the administrative level, and have not yet been reviewed by an appellate court.
But Barth believes the issue is one that courts, employees and employers will be forced to address.
“I think this will probably be an important issue that the courts will take up simply because Facebook is everywhere and everyone seems to be on it,” says Barth.