Employers have been quick to recognize that there are significant and varied risks involved when employees talk about employment-related issues on social media. Many of these risks are common to other forms of communication and have traditionally been subject to corporate policies. For example, policies warn employees about the dangers of exposing confidential information on the Internet or of purporting to represent the company when they have no authority to do so. I previously discussed the fundamentals of sound corporate social media policies. However, social media policies venture into uncertain territory when they try to control more difficult-to-define behavior that is considered inappropriate or undesirable, including, for example, disparagement of management or colleagues.
Recent action by the National Labor Relations Board (NLRB) illustrates that an employer’s ability to use such broad policies against employees who complain about work is limited. According to the NLRB, blanket restrictions that prohibit employees from talking about work are illegal. The agency has ordered large corporate employers to rewrite social media policies that go too far in restricting employee speech. It has also ordered that employers reinstate employees who were fired based on social media postings.
Provisions of the National Labor Relations Act have always protected employees in discussing certain employment-related issues. The board says its recent rulings on social media merely extend the old rules to the new media. The law seeks to prevent employers from chilling discussion among employees relating to desired improvements in employment, like wages, benefits or other conditions. According to the NLRB, social media policies that broadly ban comments that are characterized as disparaging or disrespectful may cross the line into the chilling zone.
In Hispanics United of Buffalo, Inc. and Carlos Ortiz, a company fired five employees for an outburst of angry Facebook posts in response to a threat from one of their co-workers to complain to the boss that they were slacking on the job. The company viewed their posts as a violation of the company’s anti-harassment policies, insofar as they were expressing hostility toward the worker who threatened to complain.
The NLRB determined that the terminations were unlawful. It deemed the Facebook posts protected under the National Labor Relations Act’s protection of “concerted activity” for purposes of “mutual aid.” But whether the posts at issue were really concerted activity aimed at improving working conditions or simply unprotected venting is debatable.
The NLRB took a different view in cases in which social media activity by employees acting alone was involved. In Lee Enterprises, Inc. d/b/a Arizona Daily Star, a reporter at the Arizona Daily Star triggered his termination by posting tweets bemoaning the lack of homicides to report, and in Porch Saloon & Eatery, Ltd., a bartender achieved the same result by expressing his hope that his customers choke on glass while driving home drunk. Even leaving aside the offensiveness of these postings, they were not protected because they did not constitute the kind of “concerted activity” protected in Hispanics United.
The NLRB’s general counsel has also been looking at corporate social media policies and issuing reports accusing them of going too far in restricting employees’ social media activity. One report found a policy unlawful where it said that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” The rationale for this ruling was that it was too broad and on its face could prohibit protected communications. Similarly, another report found a policy prohibiting postings that “damage the company” or “any person’s reputation” to be impermissibly broad.
Although employers are eager to address the risks presented by employee use of social media, they need to be careful not to overreach in seeking to curb such activity through policy. The interest on the part of regulators and legislators in protecting social media speech is clear from the recent NLRB ruling and reports, as well as from recent legislation in several states that prohibits employers from asking employees for their social media usernames and passwords as a condition of employment. Corporate social media policies are an essential risk-mitigation tool, but they must be narrowly tailored to target speech that is not only risky, but also properly the subject of corporate regulation under the labor laws.