FAQ: How do corporate social media policies hold up against labor law?

FAQ: How do corporate social media policies hold up against labor law?

Facebook, Twitter and other social media sites are popular venues for complaining about a job, boss or co-workers, and companies sometimes fight back. The result is a new, evolving legal area with little case law to offer guidance. The National Labor Relations Board (NLRB) has seen a growing number of cases dealing with corporate social media policies and employees terminated for social media activities.

For example, an ambulance service employee in Connecticut was fired after calling her boss a “scumbag” on Facebook, but she got her job back when the NLRB deemed her comment protected speech. However, a Wal-Mart employee who was disciplined after calling a supervisor a “super mega puta” on Facebook and a bartender who called customers “rednecks” on Facebook received no NLRB assistance.

Whether these activities are protected by law appears to have less to do with the postings themselves than with the circumstances surrounding them.

This FAQ is part of SearchCompliance.com's IT Compliance FAQ series.

Table of contents:

What employee social media activities are protected by labor laws?

The NLRB has received a growing number of social media-related cases in recent years. The NLRB investigations shed some -- albeit hazy -- light on what kinds of postings are protected under the National Labor Relations Act that safeguards the rights of both union and nonunion employees.

Employees are generally entitled to discuss the terms and conditions of employment with co-workers (and even use really bad names for supervisors) because the law protects such “concerted” activity. Employee activity is considered concerted if it is conducted on behalf of more than that one employee and the activity is engaged in with other employees. This is true whether the activity takes place around a water cooler or on a social networking site.

One of the NLRB’s landmark cases in this area involved American Medical Response of Connecticut, an ambulance company that fired an employee who had posted disparaging remarks about her boss on Facebook. This including calling the boss a “scumbag” -- a violation of the company’s social media policy. The NLRB found that the disparaging comments were protected speech because they took place in a discussion about working conditions between several employees. The main problem for the ambulance company was its social media policy, which the NLRB found to be overbroad because it prohibited employees from discussing the company “in any way” on social networks.

In another case in which the NLRB found social media comments to be concerted speech, a luxury auto dealer had fired a salesman who posted criticisms on his Facebook page of a sales event and its impact on commissions. In this instance, the NLRB found that the employee was expressing sentiments that co-workers shared, and the postings continued concerted activity that had begun earlier at a staff meeting.

A ruling by an NLRB administrative law judge on Sept. 2, 2011, sided with five employees who had been fired by Hispanics United of Buffalo (a nonprofit social services provider) after posting comments about their workload and staff levels on Facebook.

Judge Arthur Amchan ruled that employees “have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7 [of the NLRA].”

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What employee social media activities are not protected by law?

The NLRB has looked into several cases in which it found employee postings on social media sites did not constitute protected activity. If comments on Facebook, Twitter or other sites boil down to a single employee’s gripes or if they are based on a single employee’s opinion, they are unlikely to be protected under labor law.

For example, the NLRB decided a newspaper reporter who wrote offensive musings on Twitter engaged in unprotected activity. The newspaper had been encouraging reporters to use Twitter and this one did so, sometimes making fun of the newspaper itself. He also posted comments about the area’s homicide incidents, including "What?!?!? No overnight homicide? WTF? You're slacking Tucson." The NLRB found that the reporter’s Twitter comments were not about the terms and conditions of employment and did not involve other employees.

A bartender at JT’s Porch Saloon & Eatery in Illinois also failed the NLRB’s test after he was fired for complaining on Facebook about his employer’s tipping policy and his lack of a raise. He called the bar’s customers’ “rednecks” in a Facebook exchange with his stepsister. This was not considered concerted activity because the bartender was not exchanging the comments with co-workers, and he had not raised the matter with his employer.

In a similar case, the NLRB sided with Wal-Mart Stores Inc. after it disciplined an employee for writing disparaging remarks about the company and a supervisor on Facebook. The remarks included “You have no clue … [Assistant Manager] is being a super mega puta!” In this instance, the NLRB decided that the comments reflected the individual’s gripes rather than concerted activity.

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What role does a corporate social media policy play in protecting a company and its employees?

The U.S. Chamber of Commerce reviewed more than 129 NLRB cases that involved social media in one way or another. It found that policies were deemed overbroad when they restricted discussions about wages, corrective actions, termination of co-workers or disparaging remarks about the company or supervisors. The circumstances surrounding the adoption of the corporate social media policy and whether it was officially adopted by the company also play into its lawfulness.

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How can employers craft corporate social media policies to comport with labor law?

Companies are widely advised to have a written corporate social media policy in place but to make it sufficiently narrow so not to preclude activities protected by labor laws. Policies need to be crafted so that do not restrict concerted activity regarding workplace terms and conditions. Language that limits restrictions on social media use to activities separate from those protected under the National Labor Relations Act is recommended.

Legal experts also widely recommend making sure the purpose of the corporate social media policy is stated clearly. Companies should be clear that the intent is not to quell employee discussion of work conditions and provide specific examples of prohibited social media activity.

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