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.
In certain situations, the task of disciplining an employee for comments made on a social media website will not be difficult. If an employee’s behavior is not protected under the National Labor Relations Act, an employer is free to terminate the employee for his violative activity. Under Section 7 of the National Labor Relations Act (NLRA), employees are protected if they use social media to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (NLRB) has construed this to protect employees if they engage in any of the following kinds of activity via social media:
- Bring group complaints to the attention of management
- Initiate a discussion with a group of employees about a term or condition of employment
- Discuss shared employee concerns about the terms and conditions of employment
- Honestly criticize an employee’s job performance and discuss this with other co-workers
- Honestly criticize a supervisor’s job performance
- Generally complain about a term or condition of his or her employment
Therefore, the employee who uses his social media account to threaten another employee, or make racist or sexist comments about another employee can (and often should) be terminated. Likewise, the employee who uses his social media account to merely gripe about his personal, malicious views of a fellow co-worker can also be properly disciplined or terminated.
2. Employers must carefully analyze whether activity could be deemed protected.
The problem arises for employers when the question of whether an employee’s activity falls under the protection of the Act’s umbrella is not as clear. Take, for example, the following situations:
- An employee engages in a “conversation” on her Facebook wall with two of her Facebook friends that are not co-workers in which she makes light of her experiences during her night shift and jokes about her mentally disabled clients’ behavior.
- An employee posts a comment on her Facebook wall threatening that she and other employees will quit if the “tyranny” at the store does not end, and refers to her supervisor as a “super mega puta.” Several of the employee’s co-workers respond to her comment.
- An employee regularly posts complaints on his Facebook page about his workplace issues with his co-workers and his manager, even after his employer asks him to stop. The employee goes on to post comments suggesting that two of his co-workers are receiving preferential treatment.
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.
3. Employers should thoroughly investigate the facts surrounding any problematic social media post.
Like any other workplace complaint, employers must ensure that they begin by thoroughly investigating the facts underlying a problematic social media post, regardless of whether the employer has access to the post. Employers should look to answer such questions as why the employee made the comment, whether the employee’s post concerns wages, hours, benefits or other terms and conditions of employment, and whether the employee’s comments led to an online discussion with co-employees. All of these questions will help answer whether the activity is indeed protected. Lastly, employers often should exclude any supervisors who were the subject of the comments from the decision making process.
Regulating employees’ social media usage is not an easy task, but it is one that employers cannot afford to disregard. As the number of people using social media continues to grow exponentially, employers must be prepared to deal with the relocation of “water cooler” talk and workplace gossip to the web. By carefully using information that is publicly available on the web to vet potential employees, crafting a social media policy that is not overly broad or ambiguous and focuses on restricting activity that is not protected under the NLRA, and taking action against employees who stray afar of the NLRA’s protections, employers will be able to effectively, and legally, contain their employees’ social media activities.