Social Media & The Workplace

Social Media & The Workplace

There is nothing new about the concept of social media.  How social media affects the workplace however, is an evolving concept.  Often referred to as the new office water cooler, social media sites such as Facebook and Twitter have become an increasingly common forum for workplace conversations.  But what happens when these conversations turn into complaints?

What can employers do when their employees lament to the online world about their supposedly awful employers? An infuriated employer may wish to promptly escort a publicly grumbling employee directly to the exit door with an express invitation to never return. But in doing so is the employer asking for a wrongful termination lawsuit? As with most legal concepts, it depends.

The National Labor Relations Board (NLRB) has issued a series of decisions and reports about such scenarios as well as memoranda regarding social media policies that offer guidance to employers. [1]  Under the National Labor Relations Act (Act), it is permissible for employees to discuss their working conditions freely, whether the discussion is held in the office or on a social media site. If employees communicate with one another for the purpose of improving wages and working conditions then their speech is protected by federal law.  The speech of a single employee, however, who posts an offensive tirade unrelated to working conditions, is not protected. It is essential for an employer to understand the difference between those two standards in order to protect itself from exposure to liability.

For example, in a recent decision involving the New York company Hispanics United of Buffalo, Inc., the NLRB concluded that five employees had been wrongfully terminated for posting angry complaints about their workloads.  The employees made the comments in response to a coworker who had posted an allegation that other employees did substandard work. Based on the five employees’ Facebook postings made directly in response to the coworker who had complained, the employer terminated the five employees for purportedly violating the company’s harassment policy.  The NLRB, however, found that the posts were the type of “concerted activity” that is protected by the Act and that the five had been wrongfully terminated.

These circumstances are distinguishable from an employee acting solely on behalf of him or herself who posts an offensive or disparaging remark about his employer.  When faced with questionable online postings or blogs, employers should consult with employment counsel to ensure their responsive actions do not violate the law.

Complaints about the workplace are not the only posts or conversations about which an employer should be wary. Employers have a vested interest in ensuring that employees’ social media
communications comply with company policies (such as harassment policies) and that employees do not disclose confidential information or company trade secrets.

In order to do so, employers should seek legal counsel to make certain that they have a well written social media policy in place. Social media policies should impose specific rules and guidelines regarding prohibited conduct, including illusory examples, rather than blanket prohibitions.  Limiting employees’ social media posts for the good of the company without crossing the legal line is a difficult task and one best left to employment counsel.

At Lamb McErlane PC we provide advice and training for employers on harassment, discipline, discharge of employees and other workplace issues in order to reduce liability exposure.  We have significant experience in representing employers in federal court, state court and before the Equal Employment Opportunity Commission (EEOC) and Pennsylvania’s Human Relations Commission (PHRC).

Mary-Ellen Allen, Esq
Partner, Litigation
Lamb McErlane PC

[1] The NLRB is an independent federal government agency that protects employees’ rights to join together to improve wages and working conditions, with or without a union.