In an age where most of the population has an online presence and uses social media as a way to connect and communicate with family, friends and co-workers it is difficult for employers to know when it is appropriate to address information that they may have seen or heard about on an employee’s social media account. So, what is an employer to do when an employee’s social media posts are considered offensive, harassing or do not align with the employer’s values? This question often leaves employers wondering if they have a right to address this behavior and whether or not doing so will violate the employee’s “freedom of speech” or labor laws.
The First Amendment protects the right to free speech, but how this law relates to the workplace is often misunderstood by employers and employees. This law was designed to prevent the government from suppressing or enacting laws which limit an individual’s right to free speech; however, this law does not apply to private employers. In spite of this fact, employers must be aware that social media posts may be protected by labor law. Specifically, labor laws that have been enacted to protect some forms of employee speech, such as the National Labor and Relations Act (NLRA).
The NLRA prohibits employers from making rules which limit an employees' right to discuss working conditions, wages and benefits with other employees. While employers can ban the use of social media on company time, they can’t have blanket policies that stop employees from discussing work-related issues on social media. Posts which result in an online conversation among employees and where the conversation criticizes working conditions, pay rates and management are considered “concerted activity”, which is protected by federal labor law. This begs the question; how should employers proceed where a post is not considered “concerted activity”?
Employee posts that are unrelated to the terms and conditions of employment, such as posting trade secrets or customer lists; offensive remarks regarding co-workers or the company; or remarks that are considered hostile or of a harassing or bullying nature can be a basis for an employer to pursue disciplinary action, up to and including termination of employment. Any disciplinary action taken against an employee for their online behavior should be done in connection with establishing a violation of any applicable company policies such as confidentiality of company information, non-harassment, bullying in the workplace, off-duty social media usage or standards of conduct. Employers should also be prepared to explain to the employee how their online behavior impacts the workplace.
It is recommended that employers work with their legal counsel to review any policies or rules related to off-duty use of social media. The National Labor Relations Board (NLRB), which enforces the NLRA permits employers to establish neutral workplace rules. In order for the employer’s policy to be lawful the employer's interests in maintaining the rule has to outweigh the rule's negative impact on the employees' rights and should not have a targeted or unintended impact on any particular protected class such as race, color, sex, religion, age or disability.
Additional information regarding the NLRB and social media can be found here.
HR Works Virtual HR Helpline clients should contact the Helpline at 585-381-8340 x 1 or by email at: firstname.lastname@example.org for a sample of our attorney reviewed social media policy. HR Works can also assist organizations with developing a federal and state complaint employee handbook that would include an off-duty social media policy.
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