Don’t like an employee’s Facebook posts? Think twice before clicking the “fire” button

chained keyboardIf your company is like most, it already has a social media policy, is working on one, or is thinking about putting one in place.  Employees often talk – and gripe – about their jobs on social media sites, prompting employers to adopt policies for their employees’ internet posts about work.  However, recent decisions by the National Labor Relations Board (NLRB) show that it considers certain forms of e-griping to be protected speech, and a policy preventing it could earn your company unwanted federal attention.

A typical social media policy discourages employees from making public online comments that cast the company, management, or co-workers in a negative light.  However, recent rulings have shown that blanket prohibitions like these may violate Section 7 of the National Labor Relations Act (NLRA) which protects the rights of employees to act together to address wages, benefits, and working conditions, with or without a union.

As the NLRB’s recent decisions and advisories clarify, this protection extends to certain work-related conversations conducted on social media like Facebook and Twitter.  Thus, any social media policy which “would reasonably tend to chill employees in the exercise of their Section 7 rights” – even if the policy is silent or ambiguous about those rights – may be struck down.

However, this doesn’t mean all policies restricting work-related online speech are necessarily prohibited.  Section 7  does not protect offensive posts which are unrelated to improving wages, benefits, or working conditions.  For a good example of the distinction between protected and non-protected online employee speech, click the links to see the NLRB’s decisions in Hispanics United of Buffalo and JT’s Porch.

It can be difficult to strike a balance between prohibiting offensive speech and chilling protected employee communication.  For more information on how to strike that balance, contact the attorneys at Tucker Law Group.

2 thoughts on “Don’t like an employee’s Facebook posts? Think twice before clicking the “fire” button

    • Interesting article and decision, Eric – thanks for pointing it out! It looks from the decision that if an employee’s comments are of type that could do significant harm to the employer’s material interests, they may be considered so “egregious” that they’re not protected, even if they are “concerted” activity. It does look like a pretty fact-dependent analysis, so employers will still want to be careful when disciplining employees for online speech.

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