Social Media and Employees Revisited

The presence or absence of a social media policy does not prevent businesses from taking the internet actions of their employees into account when making business decisions; however, businesses must ensure that decisions involving their employees’ use of social media like LinkedIn, Facebook, and Twitter, do not unlawfully infringe on the employees’ right to engage in protected, concerted activity to improve their working conditions.

The National Labor Relations Act (NLRA), Section 7, provides all private sector employees, unionized or not, a right to engage in concerted activity for mutual aid and protection. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the NLRA.

Employer actions may violate the NLRA if they restrict Section 7 activities, such as by terminating an employee for their concerted expression of workplace concerns.

In the recent case of Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012) the NLRB found that five employees engaged in protected concerted activity by posting comments on Facebook that responded to a co-worker’s criticism of their job performance. While the employer had terminated the five workers for bullying and harassment of their co-worker, the NLRB determined that the discipline or discharge was motivated by the employee’s protected, concerted activity. The Facebook posts all occurred on a Saturday, outside of working hours, and the concerted activity was inferred by the five workers’ participation in the Facebook comments.

It is a best practice for a business to have a written social media policy that complies with this expanding application of the law.