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Social Media: Are Your Employees’ Comments About the Workplace Protected?

My good friend Mike Dobert offers some helpful guidance to business owners! Read here and see what he has to say:

As Social Media has become a part of many of our employee’s everyday lives, employers have become increasingly aware of the potential for negative comments by its employees about the company, managers, customers and other aspects of their workplace.

This has led to many companies developing social media policies protecting the company’s reputation, trade secrets, and other proprietary information. Many social media policies also prohibit the following:

• Inappropriate discussions about the company, management and/or co-workers
• Social media posts which embarrass, humiliates or defames the company, manager, employees, etc.
• Disparaging comments when discussing the company or employees, co-workers, customers or competitors

Social Media polices are an important part of an employer’s HR policies, employee handbook, etc. However, employers must be cautious not to violate Federal Labor Relations Laws which apply to Union, and Non-Union employers including small businesses.

The National Labor Relations Act of 1935 (NLRA) applies to most private-sector companies protecting worker’s rights and discussions about working conditions. With significant penalties for committing unfair labor practices including back pay, reinstatement and interest, employers must be thoughtful before monitoring social media sites, and/or, but not limited to taking any kind of adverse action (fire, demote, etc.) against employees for posting negative comments about their work environment and communicating with co-workers; i.e.: “Protected Concerted Activity”

Under the NLRB, it is a violation of federal law to discipline (adverse action) an employee for discussing wages or working conditions which may include negative comments about a supervisor or management if it is concerted activity; e.g.: More than one employee involved making it “concerted”. Having said, the comment of one employee can be considered concerted if the employee purports to be acting on the behalf of a group, and/or initiating group action.

The following are some examples of what may be considered “Protected Concerted Activity” and violations of the NLRB:

• An employee who was disciplined for criticizing the company’s performance appraisal process and lack of pay raises on their Facebook page
• An employee who was fired for posting negative comments on their Social Media site using their personal computer during non-working hours about their manager, stating, the “manager” is an idiot and doesn’t have a clue about how to manage people!
• A employee who is fired for being “outspoken” about the treatment of employees by management and created a Facebook page to discuss with other employees

Employers must look at every situation on a case-by-case basis before taking any adverse action. Employers have not lost all control of their workplace and have the right to ensure professional conduct by their employees, although they may not always like what employees have to say. For an employer, they must separate the issues and be sure any adverse action does not constitute a violation under the NLRB.

Most importantly, a company must demonstrate a good-faith effort to comply with federal, state and local applicable employment laws and fair employment practices. A key for employers is to ensure an updated review of company HR policies, employee handbooks and management/employee training, etc.

Specific to Social Media Policies, the following language may be useful:

It is not the intent of (Company A), to restrict the rights of employees under NLRB Act and/or, but not limited to any other applicable laws. It is not the intent of (Company A) to unnecessarily monitor, participate in unlawful “surveillance” and/or, but not limited to restricting an employee’s right to band together to address employment concerns and/or any other Protected Concerted Activity. If at any time you feel your rights are being violated you should contact the (Owner, CEO, President, HR) immediately.

Note: Members of management and/or such designees acting on behalf of (Company A) shall not participate in the unlawful “surveillance” of protected employee activities, including Protected Concerted Activity, or to create the impression of surveillance. Any concerns of inappropriate posts or communications viewed in the public domain should be reported to the (Owner, CEO, President, HR) immediately to ensure the appropriate action based on all the facts available.

Employers should also be aware of a mandatory federal posting requirement which affects nearly all U.S. businesses requiring the NLRB rights poster to be posted along with the other federal and state required workplace posters by January 31, 2012.

All federal and state posters are available for free and do not have to be purchased – the following is a link to the NLRB poster:  http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf

For more information or a link to other required FREE federal or state required posters, contact Mike Dobert, S.P.H.R. at HR in Alignment, LLC. mdobert@hrinalignment.com 281.494.2985

This article (written by Mike Dobert) is for informational purposes and not intended as legal advice.

Tags: HR, Management, Social Media