Social Networking - A Potential Hazard for Employers
01.15.12This article first appeared in the January 15, 2012 edition of The Tallahasse Democrat.
Gone are the days when employees complain about their bosses or unpleasant work experiences to fellow employees in front of the company water cooler. In today’s technology driven society, employees often use texts, emails, or social media, such as Facebook, MySpace, and Twitter, as an outlet to complain about their bosses or a bad day.
According to Facebook.com, the average Facebook user has 130 “friends.” On any given day at least one those “friends” is commenting about how he had a lousy day at work, and that his boss is a “jerk” or “scumbag” for something he/she did at the workplace. Typically, an employee will post a comment of this nature at home on a home computer, intending that it remain amongst “friends.” Unbeknownst to the employee, however, the boss finds out about the posting the next day. The boss gets angry, and feelings of employee disloyalty erupt. The boss charges into the Human Resources department demanding that the employee be fired. A discussion ensues as to whether the employee should be fired because of the posting. What should the employer do?
Before deciding to fire an employee because of a text, tweet, email, or Facebook or MySpace posting, an employer must consider that its action may result in an unfair labor practice charge by the National Labor Relations Board (NLRB). The National Labor Relations Act protects employees who engage in “protected concerted activity” for the purpose of “collective bargaining or other mutual aid or protection.” The NLRB is a federal agency charged with enforcing the provisions of the Act.
Over the past year, the NLRB decided several cases expanding the scope of “protected concerted activity” in the context of employee social networking activities. In one case, the NLRB Board found that an employer (a non-profit social services provider) unlawfully discharged five employees who had posted comments on Facebook relating to allegations of poor job performance previously expressed by one of their co-workers. In another, the NLRB concluded that an employee’s posting of a negative remark about her supervisor on her personal Facebook page was protected, even though she referred to her boss as a “scumbag.” In another case, an automobile dealership was found to have violated the Act when it fired a salesperson for posting on his Facebook page photographs and commentary that criticized a sales event held by the employer. Finally, a sports bar and restaurant discharged and threatened to sue two employees who participated in a Facebook conversation initiated by a former coworker about the employer’s tax withholding practices. The NLRB concluded the employees’ conduct was “protected concerted activity.”
Employees have a right to discuss workplace issues. In an effort to protect itself, an employer should be aware of the law and develop carefully drafted social media policies. Such policies must make clear that they are not designed to discourage or prohibit appropriate communications but to protect legitimate business interests and prevent harm to the company, its employees and customers. Narrowly tailored interests should be specifically identified in the policy.