Employers must use caution in disciplining workers for negative comments publicly posted online through social media. The National Labor Relations Board (“NLRB” or “the Board”) recently heard several complaints over the use of social media and framed two threshold questions to help guide management and staff. The NLRB’s decisions supply employers with much needed direction in the area.
Protected Activity
The first question: is the contested post or online discussion protected activity? The National Labor Relations Act (“NLRA” or “the Act”) protects workers engaged in “concerted activity,” which includes acting together to improve working terms and conditions. In a recent case, Three D, LLC, a bar and restaurant terminated several employees after it discovered they had criticized management in a post on Facebook. The NLRB decided the restaurant’s employees were using social media to discuss with one another and with members of the public the “terms and conditions” of their employment.
This is another in a sequence of NLRB decisions, which interpret “terms and conditions” of employment broadly. The Board also stressed that the conversation was part of “an ongoing sequence” of discussions that began in the workplace. Even the employee who simply “liked” the post was protected, because he implicitly endorsed stances taken by other participants.
Losing the Act’s Protection
Once an action is deemed protected by the NLRA, the second threshold question: have workers lost that protection? The Board recognized that employers have an interest in protecting their reputation and in maintaining a loyal workforce. Therefore, although employers may not prohibit concerted activity, they can punish sufficiently defamatory statements. A defamatory statement is an untrue, verbal or written attack. Upon a demonstration that the employee conduct was sufficiently defamatory that post loses the Act’s protection.
Actions to Avoid
It is easy for a manager to be caught in an emotional reaction, especially if a post contains a personal attack. But acting on impulse can cost an employer. First, management may not interrogate employees about engaging in protected activity. For example, in the previously mentioned case management called individual employees into the office and questioned them about their participation in the Facebook post. Section 7 of the NLRA, which protects “concerted activity,” prohibits this type of questioning.
Second, employers cannot threaten to terminate employees for engaging in protected activity. Threats of discipline or termination used during questioning to persuade an employee to be honest with management would violate the NLRA.
Third, actually terminating employees for participating in protected activity is also prohibited. In addition, telling an employee his/her job is in jeopardy is also improper.
Putting It All Together
To determine if a conversation on social media is protected, consider the topic of the post, along with any other discussions leading up to it. Also, remember that even passive participation such as re-posting or “liking” the discussion can be protected.
Employers may not use social media policies to prohibit certain content from inclusion in employee posts, even if it is critical of the organization. A carefully crafted policy can communicate and protect employer interests and provide guidance for addressing social media concerns. In addition, when putting together a social media policy, to avoid pitfalls like the ones we discussed, take a look at the drafting tips included in a previous Newsletter article.