Quincy Hodges, The Daily Record Newswire
As social media becomes more prevalent, employers must have plans in place that explicitly address their social media policy in order to prevent blowback from employees' outbursts on various websites.
Though a company may have a vague social media policy in place, an employee under certain federal and state laws may be protected, leaving the company’s hands tied.
Over the past couple of years, the National Labor Relations Board has issued several memos and statements dealing with employees who speak out on social media.
“The issue is when an employee goes on Twitter or Facebook or Instagram or Snapchat, and they say, ‘My company is horrible’ or ‘My boss is discriminating against me,’ and that has an impact on something like (the review website) Yelp. (That) is an action that is protected speech,” said Brandon Davis, an attorney with Phelps Dunbar in New Orleans.
Erin Kilgore, an attorney with Kean Miller in Baton Rouge, said under the National Labor Relations Act, some employee comments and posts on social media may be protected activity. But some posts are not protected.
“Protected activity includes discussions among employees about wages, hours, and other terms and conditions of employment,” Kilgore said. “Discussions about these topics in cyberspace are protected to the same degree they would be protected if they took place around the water cooler.”
When an employee has gripes about unrelated work topics, their speech isn’t protected by the NLRA but may be protected under the U.S. Constitution if they’re a public employee.
Kilgore said the NLRA only protects employees’ concerted activities.
“Therefore, social media posts regarding individualized complaints are not protected and can subject an employee to disciplinary action or other consequences, depending on the circumstances,” she said.
Davis said in past years, an employee would need to go to their employer with a definitive, tangible complaint about workplace behavior, harassment or discrimination before they could trigger federal or state protections.
“So it’s setting the threshold for employers at a much lower level,” Davis said. “Employers can’t really do much to control the chatter that is out there in the Twitter world or the social media atmosphere.”
An employee’s social media posts, however, can lose their protection when the content is inappropriate or unlawful.
“The threshold for determining 'inappropriate' content is fairly high,” Kilgore said.
Earlier this year, the NLRB held that an employee’s Facebook post calling his boss a foul name and making other profane comments was protected, concerted activity under the National Labor Relations Act due to the fact that the employer had allowed such language before without any discipline and that the employee’s Facebook posts were related to employees’ working conditions.
At the time that the employee of a catering service in New York went to Facebook to voice his frustrations, a union campaign was underway and an election to certify the union was scheduled. Two days before the election, the server was upset that his supervisor spoke to employees in a loud, harsh tone. During a work break, the server posted a profanity-laced tirade against his boss.
“One of the toughest issues for employers is that they do like to have some control over some of their employees on what to say and what they do,” said Bill Corbett, an LSU law professor and interim co-dean of the law school. “I think employers are more concerned than they have been before.”
Corbett, who teaches labor and employment law classes, said that while an employer argues to look at the language the employee has used, the employer may have tolerated that language in the past.
“The use of profanity does not necessarily mean it loses protection,” Corbett said.
As social media continues to change, employers are encouraged to get ahead of the curve, put a plan in place and keep abreast of social media policies.
“For most employers, it would be prudent to implement a social media policy, provided the social media policy does not infringe upon employees’ rights,” Kilgore said. “It is important to stay vigilant and up to date on what the courts, government agencies and lawmakers are saying about social media policies and an employer’s ability to respond to employee social media activity.”
Davis also encourages employers to have a reporting mechanism in place.
“If employees want to complain or comment on what’s happening in the workplace, clearly they’re allowed to do it on social media, but employers need to provide employees an alternative outlet to give those grievances,” he said.
Kilgore said in recent years, social media policies and other common employer policies and work rules have come under the scrutiny of the NLRB.
The NLRB has challenged policies that infringe upon employees’ rights to discuss wages, hours and other terms and conditions of employment, including the employees’ rights to engage in those discussions on social media.
“Policies that have passed the NLRB’s muster avoid overly broad terms and descriptions of prohibited conduct and provide clear examples of what is and is not acceptable behavior,” Kilgore said. “The key is drafting clear, precise policies and provisions which employees could not reasonably interpret as preventing or infringing upon their rights to engage in concerted activity to discuss wages, hours, and other terms and conditions of employment.”
Corbett said technology is outpacing the law.
“It’s hard for the law to keep up with the technology, and hard for employers to keep up with the technology,” he said. “Most of the laws being used regarding communication and technology predate the internet.”
