By Emily Franchi

With the creation of the National Labor Relations Board (NLRB) and the passing of the National Labor Relations Act (the Act) in 1935, employees have enjoyed protection to speak freely with one another about their employer. This was commonly done over the office water cooler with office rumors and gossip being freely discussed. Fast forward 80 years, and the water cooler has been replaced with social media sites such as LinkedIn, Facebook and Twitter.

Those water cooler discussions were held in the confines of the office and therefore kept somewhat private. Social media has since opened a world-wide door to those discussions. Now that employee opinions of employers are available for the world to see, can an employer legally prohibit such commentary?

‘Protected concerted activity’

The overly broad answer is, “Yes and no.” Employee discussions of working conditions, safety issues, pay, etc., in social media are considered “protected concerted activity” under the National Labor Relations Act and therefore cannot be governed by the employer. This means that an employer may not discipline, demote or terminate an employee having those types of conversations over social media. Many employers hold the misconception that this policy applies only to union employees, but it applies to all employees, union or not.

However, if in that discussion an employee divulges proprietary information, violates the employer’s anti-harassment and discrimination policy, or is reckless, profane or threatening when referencing the employer, the employer may discipline the employee. The employee might be in violation of the policies of the employer and the social media site, though protection is decided on a case-by-case basis. Individual griping may not be protected, but sharing specific workplace concerns might be protected. Navigating the law can be like walking through a minefield.

In a recent Connecticut case, an employer was sued by an ex-employee who was fired after a social media posting in which she discussed her feelings about a supervisor as well as safety concerns.

‘Unlawfully fired’

“After a work-related incident, an employee criticized her supervisor in a post on Facebook, which prompted other employees to reply to the posting. The employee was suspended the next day and later fired. The NLRB issued a Complaint alleging the employee was unlawfully fired for engaging in protected concerted activity when she posted on Facebook. Prior to a hearing, the case settled.” Source: NLRB.gov

In another recent incident, an employee of the firm posted disparaging and threatening remarks about other employees of the firm. The “conversation” was threatening, slanderous and unproductive, which led to the social site removing the employee’s post and warning the employee of the violation of the site’s policies regarding postings. The employee was subsequently terminated.

In a 2012 case against Costco Wholesale Group, the NLRB held that the company violated employees’ rights by maintaining a policy prohibiting employees from electronically posting statements that “damage the company.” According to the NLRB, the broad statement in this policy violated the employee’s rights under the Act.

The first and easiest line of defense for the employer is to review all policies that may impact the legal rights of employees. Does your firm have an open-door policy that encourages employees to share concerns with management in an environment free from the fear of retaliation? Employees who feel they are heard by employers are less likely to post disparaging remarks on social media sites. However, the key is to ensure all of management is on board with being open to hearing employees’ suggestions and concerns. Equally important is including a social media policy in the employer’s handbook that outlines expectations relating to what can and can’t be shared on social media. Frequently hidden in a conduct policy are inappropriate requirements that also might infringe on employees’ rights.

Social media policy guidelines

As your firm works to sort out the good and bad of social media, be sure to institute a policy that includes a code of conduct which defines acceptable and unacceptable communications, and requires certain disclosures and disclaimers. A firm’s social media policy should include specific clauses requiring employees to:

• identify themselves when discussing their employer or employer-related matters (i.e., no pseudonyms or anonymous postings);
• be clear and write in first person; and
• make it clear that the employee is speaking for himself or herself alone and not on behalf of the employer.

A social media policy should also prohibit employees from:

• disclosing proprietary or confidential information, even peripherally;
• discussing vendors or clients;
• posting insults, slurs, or obscenities; and
• being disrespectful, bullying or picking fights.

Social media policies are usually presented within the context of the employee handbook and other policies governing professional and ethical conduct. Such policies provide a number of essential guidelines on issues such as protecting proprietary firm information, avoiding conflicts of interest and excessive material inducements, and contributing to a safe work environment free of discrimination, harassment and retaliation. Like all policies included in the employee handbook, the consequences for breaking the policy must be clearly spelled out.

Social media related to the workplace is a dynamic topic, and the laws are constantly evolving. To reduce the potential for a claim or lawsuit, CAMICO recommends having a human resources professional review policies relating to employee behavior and/or social media postings to consider whether they inhibit employees’ rights to discuss wages, hours and working conditions and thus violate rights under the Act.

Firms that have an Employment Practices Liability insurance policy with CAMICO have access to human resources consulting services and resources, unlimited telephone and email consulting services, online resources, available HR management policies, procedures and forms, employee handbooks, and educational opportunities on HR topics.

Emily Franchi is the loss prevention specialist for employment practices with CAMICO (www.camico.com). For CAMICO policyholders who have Employment Practices Liability coverage, she provides support on a variety of human resources management issues, focusing on employee relations and legislative compliance for the workplace. Franchi works with policyholders to reduce exposure to potential employment practices claims, and she provides education and assistance in creating professional work environments.