What is to be done when something negative from an employee shows up on Facebook about you or your business?
As the use of social media has grown in the past decade and emerged as a powerful means of communication, employers have struggled to keep up with the use of this communications tool by employees. Some issues, such as the ability of employers to restrict employee’s use of social media at work and on equipment provided by the employer, or restrictions on posts that divulge confidential information, are straightforward. However, questions about social media restrictions become murkier when employers act to restrict employees’ off-duty and off-site use of social media, or seek to punish employees for posts that the employer determines are disloyal or reflect adversely on the employer.
For public employers who are bound by the First Amendment, restricting their employees’ use of social media may violate free speech rights. This is particularly true if the content posted relates to matters of public concern and if the employer does not have an adequate justification for restricting the employee’s use of social media that outweighs the interest of the employees.
Private employers are not constrained by the First Amendment, but they are also not free to impose carte blanche restrictions on social media use. Federal law protects employees from discipline for engaging in “concerted” activities that are protected by the National Labor Relations Act, which includes discussing issues related to working conditions, terms of employment, compensation and other complaints or concerns about their employment.
Beginning in 2012, the National Labor Relations Board issued decisions regarding challenged discipline arising out of the use of social media. The NLRB has held employers liable for disciplining employees for using social media to communicate with others about the conditions of their employment or for criticizing their employer regarding management.
For instance, in a 2014 case, the NLRB held that two employees were improperly terminated for criticizing their employer regarding his mishandling of tax issues, even where the social media posts used derogatory language directed at specific supervisors.
It should be noted, however, that not all posts on social media are protected. Posts that do not involve other employees, which do not relate to protected issues such as terms of employment, working conditions or other aspects of employment, or that are malicious or reckless would not likely be protected. In addition, posts criticizing the product or service provided by the employer—as opposed to the terms or conditions of employment—would not likely be protected.
The NLRB has also issued guidance addressing the permissible scope of social media policies adopted by employers. The guidance, consisting of reports issued in 2011 and 2012, stressed that “employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.”
In one case, the NLRB found a policy stating employee posts must be “completely accurate and not misleading” was vague and overly broad, as it imposed a stricter requirement for employee communications about protected activity than imposed by federal law. In another case, the NLRB found a policy provision stating that “when in doubt, do not post” to be improper, and further determined that directing employees to seek advice with the employer before posting was overly restrictive.
Undoubtedly, the use of social media has and will continue to create challenges for employers attempting to balance the interests of the employer-company with the rights of employees to engage in protected activities. Employers can take a step in the right direction to address these challenges by 1. creating social media policies that clearly describe the types of employment-related posts that protected by law and therefore are not prohibited; and 2. engaging counsel early and often when considering employee discipline related to social media use.
Aaron M. Glasgow is a partner at Isaac Wiles (Columbus, Ohio) who counsels businesses in day-to-day operations, including employment matters. He may be reached at (614) 221-2121 or by email at firstname.lastname@example.org.