March 1, 2012

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Social Media and Employers: Friends or Enemies?

Michael Patrick O’Brien

March 1, 2012

An old Irish toast prays that one’s enemies can be made to limp to distinguish them from friends. If only there was a similarly simple solution for today’s employers who are vexed by how to deal with Facebook friendships and other social media in the workplace.

Employers are confused particularly about if they can discipline employees who make negative comments to their friends about the employer on social media platforms. The National Labor Relations Board (NLRB) and its administrative law judges have added to this concern with a series of rulings faulting employers for legal violations regarding social media discipline.

Absent the benefits of a great Irish blessing, how should an employer deal with this issue?

Protected Activities
The applicable law is the National Labor Relations Act (NLRA). The NLRA applies to unionized workforces, but also applies to employers without unions. Notably, Section 7 of the NLRA prohibits discrimination against employees who engage in concerted activity. Typically, this means you cannot prohibit an employee or group of employees from talking with co-workers about how they believe they have been unfairly disciplined, or about how they are unhappy with some aspect of the terms and conditions of their job or about their wages.

Many employers also run afoul of this law by including statements in their handbooks or policies that prohibit employees from discussing their wages with each other. The right to discuss wages is viewed by the NLRB as at the heart of Section 7 rights.

On the other hand, Section 7 does not typically apply to activities such as an individual’s gripes not involving terms or conditions of employment or, if about work, gripes about a manager that are not addressed to co-workers or do not seem intended to invite group activity or mutual aid and protection. Section 7 also does not protect violent acts, defamation or discriminatory conduct.

Online Danger Zone
Although these lines of demarcation are not always perfectly clear, how does Section 7 apply to Facebook and social media?

An employee’s social media use probably is protected if the posted comments relate to the terms and conditions of employment and can reasonably be interpreted as acting with, or on behalf of, co-workers.

Social media cases where the NLRB concluded the comments were sufficiently related to the terms and conditions of employment involved topics of job performance, workload, supervisors and staffing levels. In contrast, employee posts about the employer’s customers or third parties were not entitled to protection under the NLRA.

Moreover, to be concerted activity, social media use must involve co-workers and/or invite/induce them to act. The NLRB has concluded that some social media posts, although eliciting comments from co-workers, were not concerted activity because they were individual gripes and not aimed to induce group action. The clearest danger zone for employers involves comments where some sort of group action is involved or likely.

Policy Wording
The NLRB also has warned employers about wording in employer policies or handbooks. Policies found to be troublesome or unlawful broadly prohibited “unprofessional communica-tions,” “disparaging” remarks, invasions of privacy, “inappropriate discussions” and posting of photos with the employer’s name on it. As one commentator notes, the current NLRB would likely find conduct involving mere disparagement, simple profanity, rudeness and shouting to be protected.

The NLRB recommends that relevant policies should clearly indicate they do not apply to employee rights under Section 7. In other words, employees should be told that they can engage in concerted activity regarding matters related to their terms and conditions of employment.

Proceed with Caution
So, what should an employer do? Given the complexities involved, be careful when disciplining someone because of communications with co-workers about work issues, whether they occur live (by phone, face-to-face), in writing (note, memo) or electronically (email, text, tweet, blog, Facebook or other social media posting).

When contemplating such discipline, get legal advice and specifically ask your legal counsel how Section 7 of the NLRA plays into the situation. Carefully review policies and handbooks and compare them to those with which the NLRB has taken issue.

Finally, many supervisors have no clue about employee Section 7 rights under the NLRA. Educate them.

Come to think of it, maybe there is an old Irish blessing that applies here: “May you have the hindsight to know where you have been, the foresight to know where you are going and the insight to know when you have gone too far.”

Michael Patrick O’Brien is an employment law attorney practicing with the law firm of Jones Waldo in Salt Lake City.

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