Social Media Policy Can’t Restrict Workers’ Rights to Discuss Working Conditions

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By Antoinette Oliver

Whether it’s over coffee in the break room or on a coworker’s Facebook wall, employees have the right to talk about their jobs.  A recent case with the National Labor Relations Board (NLRB) has become an important reminder that sometimes harsh criticism by employees is protected by federal law at work, at home and now on the internet.

Under the National Labor Relations Act (NLRA), employees have the right to join together, with or without a union, to share complaints, address concerns with employers and negotiate to improve their working conditions and pay.  The NLRA not only protects workers’ rights to form or join a union and engage in collective bargaining, but also their right to discuss work-related issues with other employees.

But the line between an honest discussion and defamation of a company can be blurry in certain situations, and the rapidly growing presence of social media in the workplace has made it even more difficult to distinguish.  As sites like Facebook and Twitter continue to evolve and influence the way coworkers communicate, employers must find a way to protect the company’s best interests without infringing on workers’ rights.

This delicate balance became strikingly apparent in a recent case filed with the NLRB by a non-union employee fired from a non-unionized emergency medical response team.  The employee filed a charge with the NLRB against the company for wrongful discharge after losing her job for posting negative comments about her boss on Facebook.

According to the employer, the postings violated a company policy that prohibits employees from making negative remarks on the Internet about the company or its employees.  But the employee claimed that policy and her discharge from the company violated the NLRA by denying employees their right to engage in the protected, concerted activity of sharing complaints about working conditions with fellow workers.

The case settled before an actual hearing with the company agreeing to revise its policy to eliminate any social media restrictions on its employees that could be in violation of the NLRA.  In the initial complaint against the company, the NLRB claimed the employer’s policy was overly broad and prohibited employees from writing personal depictions of the company online without permission or posting any disapproving comments.

The Facebook case was similar to other recent NLRB actions against employment policies that declare discussions of wages and employment terms as confidential and “off limits.” It’s important to remember any policy that arguably stifles the ability of employees to discuss work conditions may run afoul of the NLRA.

 

This case should serve as a reminder to every health care employer that the NLRA applies to unionized and non-unionized employers alike.  Social media provides another forum for employees to exercise their protected collective activities, and employers must make sure newly developed social media policies give due consideration to employees’ protected NLRA rights.

The larger question looming overhead in this case and in many others brought about by the proliferation of social media in the workplace is where companies can and should draw the line.  Employers must find a way to draft and implement employment policies that protect the company from legal disputes and charges of discrimination down the line.  At the same time, they must make sure employees’ rights under the NLRA and other federal employment laws are preserved as they continue to explore uncharted territories with new avenues of expression created by social media and other newly developed technologies.

To contact Antoinette Oliver, employment law attorney at Meyer, Unkovic & Scott, email her at aco@muslaw.com.