Businesses are never fond of people disparaging their products, employees, customers, or work environment. This is especially true when the person complaining about the business is one of its employees. Yet, with the popularity of social media platforms and websites, this is becoming more common. Worse, it is no longer just the stereotypical “disgruntled” employee posting negative remarks on Facebook or Twitter. It can be an otherwise happy employee that had a bad day. Rather than simply venting about his or her day to friends and family over dinner, employees are increasingly heading to social media to express frustration.
Due to the National Labor Relations Act (“NLRA”), which is the Federal law that prohibits unfair labor practices and protects the rights of both union and non-union employees to discuss the terms and conditions of their employment with other employees, an employer cannot broadly forbid employees from discussing their employment in social media. For instance, employer policies prohibiting its employees from making disparaging, false, and/or misleading statements about their employer on social media have been found to violate the NLRA. Such policies were deemed to be vague and overbroad as they were not restricted to electronic posts that were knowingly false, malicious, abusive or that constituted harassment. Because of the general wording, such policies were found to have chilled employees’ right to engage in communications protesting their employer’s treatment of its employees.
This does not mean employers cannot have a social media policy for their employees. Among other things, employees can be restricted from impersonating their employer, making statements on behalf of their employer, using social media to harass or bully other employees, or from even accessing social media during work hours. To avoid having their social media policies or any other employee conduct or workplace policy being found to violate the NLRA, employers should consider whether any of their policies could be read to restrict an employee’s right to discuss the terms and conditions of employment, including the rate of pay for employees.
This article is not intended to be exhaustive and is for informational purposes only. It does not and should not be construed to constitute legal advice or a legal opinion. Readers should contact legal counsel for legal advice on this topic.
Brian T. Flood
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