Arguably, the most difficult task for employers monitoring their employees’ social media activity is the job of disciplining employees. Although employers would like nothing more than to be able to rely on a stringent, deliberately drafted social media policy to regulate their employees’ social media posts, this is obviously not enough, and discipline is often necessary. Unlike discipline for other employment infractions, however, disciplining an employee for violating a social media policy is a delicate undertaking that should only occur after careful investigation and, where possible, conferring with outside counsel.
1. Employers can discipline employees for behavior not protected under the act.
The employees in each of these situations discussed or complained about a term or condition of their employment, and in two situations this led to other employees posting comments in response. Nonetheless, the NLRB upheld the employers’ disciplinary actions. In each case the NLRB held that the employees did not engage in concerted activity but, instead, merely complained or expressed an individual complaint.
Employers confronted by potentially problematic social media postings should similarly focus on this distinction between concerted activity and mere personal griping, and ensure that they do not discipline an employee for engaging in protected activity. By understanding the fundamental, underlying protection afforded to employees under the Act—the right to engage in “concerted activity”— employers will be better equipped to ensure that they properly handle problematic social media postings.