Expert Q&A: Legal

What laws apply to employees who post negative comments on social-media about their employer or fellow employees?

CW: The primary law at issue is the National Labor Relations Act, or NLRA, which, contrary to popular belief, applies to both union and non-union workplaces in many instances.

The agency that oversees enforcement of the NLRA — the National Labor Relations Board, or NLRB — has become very active in this area. In fact, the NLRB has heard more than 130 cases involving social media to date.

At issue is Section 7 of the NLRA, which protects employees who engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Under the NLRA, conduct is considered “protected” and “concerted” where an employee acts together with or on the authority of other employees; seeks to initiate, induce or prepare for group action; or brings “group complaints” to management.

The NLRA also protects an employee’s activities if they are the logical outgrowth of work-related concerns expressed by employees collectively.

However, conduct is not protected, concerted activity if the employee is acting “solely by and on behalf of the employee himself.” Similarly, employee comments that are “mere griping” as opposed to “group action” are not entitled to protection.

How does the NLRB rule on what is protected?

CW: The key is always context. No matter how inappropriate the comments may seem to the employer, the NLRB will look to see what the employee was complaining about. If the employee was raising issues related to terms and conditions of employment, the board will find protection under the NLRA.

Terms and conditions of employment can include a multitude of issues, such as job performance, compensation, benefits, staffing levels, supervisory actions and criticisms of an employer’s policies, just to name a few.

Of course, there does have to be some element of “group” activity at issue. But employers should be mindful that even comments by just one employee alone still can be protected if he or she is raising an issue on behalf of others or which could be considered a “logical outgrowth” of a collective concern.

Are the comments not protected as free speech?

CW: The “free speech” protection is another area that is often misunderstood. In the context of the workplace, only public employees have a First Amendment right to free speech.

And even then, the Supreme Court has defined this right very narrowly.

How might the First Amendment right potentially apply?

CW: The employee must be speaking out as a private citizen on a matter of public concern.

If the employee is speaking out as an “employee” or on a matter that is not of “public concern,” no protection exists.

As a result, public employees have had very limited success in arguing that their comments on social-media sites were protected.

Have employees ever been fired for their comments online?

CW: Yes, and the examples are numerous.

What are some notable examples?

CW: Some of the most notable include a bartender being fired for calling his customers “rednecks” and stating that he hoped they “choked on glass as they drove home drunk.”

In another case, a hospital employee was terminated for posting that she had “come face-to-face with a cop killer and hope he rotted in hell.”

A crime reporter in Arizona also was fired for tweeting (on his company Twitter feed): “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”

Can employers legally place restrictions on what employees can say on social-media sites?

CW: Yes. But employers must avoid being overly restrictive, given the NLRB’s recent decisions.

Almost every case before the board has involved some claim of an overly broad policy. In fact, the board only has approved one social-media policy in its entirety.

The policy can be found attached to the NLRB Acting General Counsel’s most recent report on social-media cases, issued on May 30, 2012.

Do employers have the right to monitor their employees’ conversations online?

CW: Under the Electronic Communications Privacy Act, or ECPA, and the Stored Communications Act, employers have the right to monitor employees’ use of employer-owned devices.

Employers should make employees aware of such monitoring through written policies that clearly explain that employees have no expectation of privacy in this regard.

What about online conversations that occur away from work?

CW: There is no law that prohibits an employer from monitoring social-media sites of employees — provided that they legally obtain access to such sites.

Employers must be careful, however, to never log into a social-media site using another person’s username or password or by pretending to be someone else. Doing so can violate the SCA and other state and federal laws.

Employers also should be aware that a number of states have enacted legislation making it illegal to ask an employee or applicant for his or her password.

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