Social Media In The Workplace

Under the National Labor Relations Act (NLRA) employees have a certain amount of protection for free speech about their terms and conditions of employment and employers have a certain amount of protection of those terms and conditions of employment.

However what happens when an employee at work sends an email to colleagues and/or friends about work problems i.e and Does a conflict arise between the freedom of speech that  the employee is afforded under the NLRA and the protection of their terms and conditions that the employer has under the same legislation?

It’s a bit of a minefield to negotiate and has become so important that the National Labor Relations Board (NLRB) has issued two reports which summarized decisions it had made in a six month period.

Some general principles emerged from the review, one of them being that even if the employer’s policy is so vague it violates the act, the employee’s posting may not be entitled to protection because it’s an individual gripe.

It looks like more social media postings by employees will be protected under the NLRA when either the posting involves more than one employee or one employee acted with authorization from other employees and must involve the terms and conditions of employment affecting a group of employees.

The RLRB rulings in what is protected and what isn’t protected is not clearly defined but those postings which are seen to be very disruptive or very “damaging to a company’s standing” are unlikely to be in the protected category; although this isn’t always the case:

An example of a NLRB protected posting ruling:

• A social service agency employee posted comments which included profanities about the agency’s staffing patterns which the employee felt were compromising patient care.  Other employees posted comments on the situation.  The employees were all fired and the NLRB ruled the postings protected.

An example of a NLRB non-protected posting:

• A newspaper reporter tweets criticized the paper’s copy editors.  The NLRB ruled that the tweets were not protected as none of the employee’s co-workers had been involved nor had their views been sought.  The employer had also warned the employee about the tweets but the employee had ignored them.

Are there any guidelines an employer should follow?

There aren’t any guidelines per se, and from the following examples which show some of the policies which were in violation of the NLRA, the drafting of social media policy is going to be a very difficult balancing exercise as you will see:

• A policy prohibiting employees using social media to make unprofessional communications which may impact negatively on the employer’s reputation or interfere with the employer’s mission;
• An employer’s rule that prohibited employees from making denigrating comments about the employer in online media; and
• A policy prohibiting employees, without prior approval from the employer, using the employer’s name outside of business, communicating employer confidential or sensitive information to outsiders or publishing, without prior approval from the employer, any representations about the employer.