Every company, office, and factory is filled with employees who use social media on a daily basis. With 700 billion minutes a month being spent on Facebook and 340 million tweets going out every day, employers must decide how they are going to handle the relationship between social media and their employees. Workers are taking to the net to vent their work-related frustrations, often attacking coworkers or management. How should this be handled? There are different angles that must be examined. This is tricky territory, and the landscape is very new. Employers must be careful when handling these issues to avoid wrongful termination and legal trouble.
Several cases have been reviewed by the NLRB, and while some employer’s decisions have been upheld, others were found to be unlawful. The complexity lies in the Wagner Act, which states that workers have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.” In 1935 President Franklin Roosevelt could never have imagined the world of the internet and social media when he signed the Wagner Act, also known as the National Labor Relations Act (NLRA). The tricky part when it comes to remarks made on social media is that any employee behavior that is considered protected by the NLRA is not behavior that can be cause for termination. A paramedic in Connecticut called her supervisor a “scumbag” during a Facebook discussion with other employees. The name calling was the result of her being questioned by her supervisor about a customer complaint and then being denied union representation. Her remark was considered protected conversation for the purpose of “group action to improve working conditions” because fellow employees made follow up comments of support. The NLRB ruled that the company had violated the paramedic’s rights.
At first glance it seems that anything goes when it comes to employee behavior on social media. However, there are instances where it is unprotected. Complaining about the job or management in general is not covered by the NLRA. Comments must be made to a group in intention or result to be considered “concerted activity.” If the initial comment is not supported by additional comments from other employees, then it may be considered bad-tempered ranting and not “concerted activity.” A Wal-Mart employee in Oklahoma complained about management on Facebook. While others made remarks of the “hang in there” variety, no agreement was expressed. The NLRB dismissed the terminated employee’s complaint as “mere griping.” Also, verbal or physical threats against the company, a coworker, or manager can be considered unprotected, but the context in which they are used is very important.
Unfortunately, all cases are not cut and dry. There is still a huge amount of gray area when it comes to the NLRB policies on social networks and the workplace. Complaints are reviewed and decided on a case-by-case basis. Previously, there was no formal example of a social media policy to cite. Companies were creating social media policies, but those policies were not always holding up when it came to terminations. They were often either too broad or deemed unlawful. In May of this year, the NLRB issued a report which included an example policy that can be referenced. With this in place, it will be easier for attorneys and HR representatives to create policies that correctly reflect what is and is not permitted. Employers can also take steps to avoid disgruntled employees taking their frustrations to social media. Encourage open door policies, mediation and open discussion to diffuse situations before they get splashed all over the internet.
Report of the Acting General Concerning Social Media Cases, May 2012