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When it comes to legal situations around social media and the workplace, the best defense is a good offense. You may not be asking these exact questions today, but someday you might. Keep reading to learn how to avoid legal traps as an employer, and how to formulate a stronger social media policy as an HR professional.


Q: “My employee is making comments about me on his/her personal Facebook account. What can I do?”

A: Perhaps nothing has emboldened people more than the rise of social media. Comments one wouldn’t dare make in person can now be expressed quickly and frequently behind the perceived safety of the internet.

But as inappropriate or insulting as a post may be, employers do not always have the right to take action against an employee for social media behavior. The National Labor Relations Act enforces the right of employees to engage in “protected concerted activity.” This law allows employees, with or without a union, to act together to improve their pay and working conditions.

 

Q: “What exactly qualifies as protected concerted activity?”

A: According to the National Labor Relations Board, an employee simply griping about their job is not concerted activity. Whatever an employee says or posts on social media must have “some relation to group action, or seek to initiate, induce or prepare for group action or bring a group complaint to the attention of management.”

However, the NLRB decides what actions deserve protection, and because every situation is different, the law is intentionally vague. Sometimes comments made on social media are interpreted as protected concerted activity because they are supported by other coworkers or simply directed at management.

In one case, an employee of a New York catering company was fired for profane Facebook comments directed at his boss and his boss’s family. Still, the NLRB found this employee protected, since the comments were made during a work break, expressed the employee’s concern about management and ended with an all caps call to join the union. The NLRB ordered reinstatement and back pay for the employee.

Less extreme examples of concerted activity include talking with coworkers about wages and benefits, circulating a petition for better hours, participating in refusal to work in unsafe conditions or joining with coworkers to address issues directly with an employer, government agency or media outlet.

The law does not protect spreading maliciously false information, or bashing an employer’s products or services without linking back to a labor controversy. However, the still-vague terms have caught many employers in legal traps.

 

Q: “So employers can never terminate employees for online behavior?”

A: Not exactly. Off duty conduct laws vary state to state, but employers do have the right to regulate online activity. For example, an employer can discipline employees for online behavior during work hours. However, they must be consistent in enforcing this policy. Discipline must be enforced for all online activity during work hours, not just when negative comments about the company are made.

Employers must also take action when an employee’s online actions place the employer at legal risk. Examples of this include betraying confidential information, violating rules about company product endorsements or harassing a coworker.

Employers should intervene when an employee acts disloyally online as well. Complaining about a manager or pay rate on Twitter isn’t considered disloyal, but if an employee claims online that the hospital where they work is unsafe, this is considered disloyal. However, if employees address legitimate safety concerns with an employer or government agency, this activity is protected.

 

Q: “What other ways can I prevent legal situations around social media in the workplace?”

A: Employers must welcome feedback. Many attacks on social media happen out of pent up frustration. If frustration can be expressed early on when everyone is still rational, the extreme cases can be avoided.

Consistent communication about social media policy is also essential. Along with routine education and training, it is important for company handbooks to have compliant social media policy in order for interceding action to take place fairly and consistently. Any employer action in response to employee behavior on social media must be in line with previous action and easily traceable to a clear handbook policy.

However, even “airtight” social media guidelines leave employers susceptible to accusations and lawsuits. Focusing on prevention is first, but staying up to date on labor relations laws is a close second.

 

Still have questions? We have answers and experience. Contact us today to see how Servant HR can serve your administrative and consulting needs.