You have policies promoting professional behavior in your workplace. Your anti-harassment and anti-discrimination policies emphasize following "the golden rule." Employees are encouraged to treat co-workers with courtesy and respect; to refrain from bullying or abusive conduct or making disparaging or embarrassing remarks that might tarnish the companys reputation or disclose proprietary information. Employees are forewarned that policy violations may result in disciplinary action including termination of employment.
So imagine your surprise when you are accused of management "tyranny" or called a "scumbag" or even a "d**k" on an employees Facebook page.
Resist the Urge
Its only natural that your first impulse be to terminate the individual. After all, who wants an employee who does not respect you or the company? But before you react, consider that your employees comments and activities may be protected under the National Labor Relations Act. The act protects union and nonunion workers who engage in "protected concerted activity."
Activity is concerted when an employee acts "with or on the authority of other employees and not solely on behalf of the employee himself," including if he invites co-workers to act or comment on his actions. For example, Co-workers, this is how I feel; how do you feel? Activity is "protected" if it relates to the terms and conditions of an employees work.
According to the general counsel of the National Labor Relations Board (NLRB), the agency charged with enforcing the act, it doesnt matter if protected concerted activity occurs around the water cooler at the employers physical work site or "digitally" through social media sites such as Facebook
The NLRB Speaks
In what is now one of the "older" (December, 2009!) social media-related cases, the NLRBs general counsels office opined that the social media policy implemented by Sears did not violate the act. As most do, the policy included a list of prohibited activities. Employees were instructed, among other things, not to disparage Sears, its competitors, any race, religion, gender, sexual orientation, disability or national origin, disclose confidential information, use explicit sexual references or illegal drugs. The policy failed to expressly state that it would not apply to activities protected under the act.
Still, the NLRB determined the policy to be OK because it was not implemented in response to union activity or applied to restrict the exercise of protected rights and employees would not reasonably construe the language to restrict protected activities.
Fast forward to this year which has seen a blizzard of social media-related activity by the NLRBs general counsel and the boards regional directors. So much so that its Office of General Counsel issued a report addressing when employers may legally discipline its employees for their social media activities and discussing the breadth and scope of social media policies implemented by employers. You can find the entire report here.
While it may be counter to common belief, employers should not think that they are in the clear because they are a non-union workplace. All employees, unionized and non-union, have the right to engage in protected concerted activity and the NLRBs general counsel has targeted employers from Wal-Mart to a small non-profit homeless shelter in its social media enforcement efforts. In fact, most of the cases discussed in the general counsels report involved non-union workplaces.
Suffice it to say that the NLRBs general counsel has almost done a 180, charging that social media policies that are very broad in scope, general and do not alert employees that the policies do not apply to protected activities do not pass muster. The boards regional offices have charged in a number of cases that disciplinary action taken against employees who "discussed" workplace issues through social media violated the employees right to engage in protected concerted activities.
Included among the type of posts the board has claimed are protected are those of a non-profits employees, who defended their job performance and denigrated working conditions in response to criticism by a co-worker who said she was going to complain to the agencys executive director. A BMW salesmans statements mocking the low-end food and other aspects of a sales event held by his employer were protected because the ensuing "discussion" among his colleagues reflected a concern that their sales commissions could be negatively affected. Crude language and other vulgarities generally will not erase the acts protections.
The Take Away
If you do not have a social media policy you need one. If you do have one, it should be reviewed by your legal department to be sure it is not overly broad or ambiguous and that it serves a legitimate purpose. The review should also insure that the policy contains disclaimers, although there is no guarantee that the NLRB or a court would consider a disclaimer to be effective if it would otherwise consider the policy to be overly broad. Legal and human resources should also assess the application of the policy to ascertain that it is being enforced correctly and consistently.
A discussion on the policy should be included in all new-hire and ongoing employee training conducted by your company. Most importantly, be sure to seek legal advice before taking any disciplinary action against an employee for social media-related activities.
Martha Lessman Katz is a member of the Intellectual Property & Technology and Business Law practice groups at the law firm of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC. She advises domestic & international clients regarding privacy and data security matters.