Technology: What employees say and do on social media can be used against them, right?

Distinguishing between protected and unprotected activity is not an easy task

You might think that there should be consequences if an employee bad mouths the company, calls their manager unscrupulous names, or posts embarrassing photographs or comments about the company on Facebook. You might also think that an employer would be well within their right to reprimand, discipline, suspend, or fire the employee for this type of social media content. You might even think that there is no way the law could provide employees with the right to unabashedly tweet about internal workplace disputes. But you might want to think again.

Certain employee social media activities are actually protected against employer retaliation in the United States. Generally speaking, the National Labor Relations Act (NLRA) provides that employee activity is legally protected when two or more employees act together to improve their terms and conditions of employment. These protected activities extend to online social media employee activity – even in circumstances where the employee comments about ongoing legal disputes and embarrassing workplace issues. Employers who take disciplinary actions against employees engaging in protected activities may be subject to fines, cease and desist orders or costly legal action. It is critical for employers to understand the distinction between protected and unprotected employee social media activity prior to disciplining or terminating employees for their online activity.

Protected social media activity

Section 7 of the NLRA affords employees with the right to discuss their wages and other terms and conditions of employment, both among themselves and with non-employees. Employees have a protected right to seek help from third parties regarding their working conditions, including conversations with fellow employees, going to the press, speaking at a union rally, and conferring with the National Labor Relations Board (NLRB) (an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions).

The nature of this protected activity does not change if the employees’ statements were communicated via the Internet or social media. Section 7 therefore applies equally to traditional “offline” communications and online conversations alike, including blog posts, tweets, Facebook comments and other forms of social networking. For example, an employee who sends a Facebook message to her colleagues about the employer’s working conditions may be afforded the same protection as a group of employees who discuss corporate wage issues during the workplace lunch hour.

The NLRB has determined that employees have engaged in protected activities on social media when they post comments or information about supervisory activities, employee staffing levels implicating working conditions, or an ongoing labor dispute. Protected social media activities may include complaints and criticisms about a supervisor’s attitude and performance, use of a company name and logo to communicate with fellow employees or the public about a labor dispute, and communications with reporters about wages and other terms of employment. Many of these activities were protected even though they occurred on the employer’s premises during non-work time and in non-work areas.

For example, one employee posted on Facebook from her home computer that her supervisor was a “scumbag” because of his refusal to provide her with a union representative. Her Facebook post drew responses from her coworkers, which led to a Facebook discussion with her coworkers about supervisory activities. The employee was suspended and later fired for her Facebook posts. The NLRB determined that the employee’s termination was unlawful because she engaged in protected activity by exercising her right to discuss supervisory activities with her coworkers on Facebook. The NLRB reasoned that the comments were made during an online employee discussion of supervisory activities outside of the workplace during non-work hours.

Not all social media activity is protected

An employee’s social media activity will not be protected under the NLRA if it does not seek to involve other employees, does not relate to the shared terms and conditions of employment, or is an activity that is otherwise carried out in a reckless or malicious manner. Social media activity that is not protected by the NLRB includes communications unrelated to the terms and conditions of employment, protests over the quality of services provided by an employer that are only tangentially related to employee terms and conditions of employment, expressions of an individual gripe, and activity that does not seek to involve other employees in issues related to employment (otherwise known as “concerted” activities).

For example, an employee who was reprimanded by her supervisor during the workday for failing to carry-out some tasks updated her Facebook status from her cell phone during her lunch break with a comment that consisted of an expletive and the name of the employer’s store. One of her coworkers “liked” her status and the employee then posted a second comment stating that the employer did not appreciate its employees. The employee was terminated for her Facebook activity. The NLRB determined that the termination was lawful because the employee’s Facebook postings were merely an expression of an individual gripe she had with a supervisor during the workday, that the employee had no particular audience in mind when she made the posts, the posts contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers.

Deciphering protected v. unprotected social media activity

Distinguishing between protected and unprotected activity is not an easy task. The examples described above are just two of the many nuances considered in assessing the protected elements of social media activity. Companies should consult with their in-house attorneys and compliance departments to fully understand the application of the NLRA to their business and the applicable laws within their jurisdiction. A consultation with outside counsel proficient in this area of law may also be helpful to thoroughly evaluate the risks involved in employee social media activity and to implement policies and procedures to prevent harmful employee social media use.

If proper precautions are not taken, you may actually think that you have the right to discipline an employee for their social media activity. You might also think that reprimanding or suspending the employee is warranted for their seemingly foolish social media posts. You may even think that the law affords you the right to fire that employee under those circumstances. Hopefully, now you’ll think twice before doing so. If not, the next question you may be asking is, “How much will it cost to resolve this wrongful termination lawsuit?”

Contributing Author

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Heather Melick

Heather Melick is of counsel with Luper Neidenthal & Logan in Columbus, Ohio. She focuses on the areas of complex commercial litigation, appellate work, military...

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Contributing Author

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Ethan Wall

Ethan Wall is a social media law attorney, author, professor, and keynote speaker at Social Media Law and Order in Miami. Ethan co-authored “

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