Last week, in Part II, I discussed the National Labor Relations Board’s review of corporate social media policies. The NLRB has held most such policies to be unlawful under U.S. labor law. This week I’ll take a look at one relevant case and get into a few helpful tips for employers and employees to keep in mind.
Social Media Law Part III: Caselaw Concerning Social Media Policies, and some Points for Employers and Employees to Consider
One specific case may shed some light on this matter: In Re American Medical Response of Connecticut, Inc. The NLRB filed an unfair labor practice charge against AMR, asserting that the company’s suspension and termination of an employee who posted disparaging comments about her supervisor violated the NLRA. The employee had requested union representation in response to a performance critique, but the supervisor threatened the employee with discipline instead of allowing her the representation. Later that day, the employee posted disparaging remarks on her Facebook page about her supervisor from the employee’s home computer. The post drew supportive responses from some of the employee’s co-workers and further negative comments about the supervisor from the employees.
The NLRB claimed the policy was “overly broad” and “contained unlawful provisions” given that employees have the right to talk jointly about working conditions. The NLRB eventually settled with AMR.
It’s important to note that this case should not be interpreted to mean that a person can post whatever they want about their employer on Facebook. The NLRB stepped in for two reasons:
- The employee’s comments on Facebook resulted in comments and discussion with her co-workers about working conditions.
- The employer did not allow the employee union representation.
Generally speaking, protesting poor working conditions in any context (via social media or in the real world) is likely to be protected. In one case, an employee’s objections to a supervisor’s lecture about radio headset volume were considered protests regarding working conditions. Complaining about unpaid 2 hour meetings was another form of protest that was upheld.
State “Lifestyle” Laws Permit Lawful Off-Work Activities
States including California, Colorado, New York, and North Dakota have all enacted “lifestyle” laws that prohibit an employer from taking adverse employee actions based on lawful off-work activities. Section 96(k) of the California Labor Code makes it unlawful to demote, suspend, or fire an employee for “lawful conduct occurring during nonworking hours away from the employer’s premises.” The California Labor Commissioner may assert on behalf of an employee claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.
Some Points That Employers Should Be Aware Of When Drafting a Social Media Policy
- Listing detailed examples of what is impermissible will make it more likely that your policy will be enforceable. “Defamatory statements,” “curse words” or “proprietary trade secrets” are all examples of phrases that were held to be sufficiently detailed.
- Do not use vague terms. If the language is ambiguous, confusing, or could be interpreted in multiple ways, the NLRB is likely to strike it down. Examples of words that are considered vague are “appropriate/inappropriate”, “professional/unprofessional,” and “disrespectful.”
- Employers cannot prevent employees from identifying the name of the employer in their complaints.
- The policy can’t require employees to have prior authorization for their personal social media posts, nor does the employee have to include a disclaimer on their personal social media page. This is too burdensome for the employee.
- Any conflict between the law and the employer’s social media policy will be decided in favor of the law.
A Few Points to Consider from the Employee Side:
- The intent of the social media content is important. Are you just blowing off steam? Are you attempting to engage with other co-workers on social media about your job? Do you intend to discuss working conditions? Or are you just talking about your boss’s ugly tie?
- If a social media post is not related to working conditions, but says something disparaging about your supervisor that is unrelated to work or is disloyal, termination or other discipline may be upheld. A statement that is “disloyal” is one that is defamatory and not supported by facts.
- The social media content usually has to fit within the “concerted activity” definition above in order for the claim to proceed.
- There is no general right to free speech at work in a private business environment. The First Amendment only protects your right with respect to the government, not your private work employer.
We’re in the homestretch – check back here next week for Part IV.