The National Labor Relations Board (NLRB) released an update last week with the latest developments in social media and employment. In a nutshell, this report says that you can say a lot online about your workplace and your employer and not get fired.
The law protects employees when they are engaged in a “protected concerted activity.” This includes discussions for mutual aid and protection about wages and work conditions with co-workers and third parties, statements where you are representing your coworkers or are outgrowths of previous employment discussions, and statements that are intended to induce group action. You can be pretty critical of your employer and/or coworkers without getting fired.
You can still get fired if your posts are defamatory, disparaging, or threatening or are simply gripes or rants.
The unexpected take-away from this report was how hard it is for employers to draft a social media policy that isn’t overly broad or doesn’t impede a protected concerted activity. You could tell that many of the employers in the report were thoughtful about their policy’s verbiage, and it was still found to be unlawful.
Based on the NLRB report, here’s what you can’t do with your company social media policy:
- Restrict all public statements regarding the company,
- Prohibit disparaging comments about the company on any media,
- Prohibit employees from communicating with the media without prior authorization
- Tell employees to avoid identifying themselves as the company’s employees or require approval to identify themselves as an employee,
- Require all communications on social media sites to be honest, professional, and appropriate,
- Prohibit “inappropriate conversations” and “disrespectful conduct,”
- Prohibit engaging in unprofessional communication that could negatively impact the employer’s reputation,
- Prohibit the disclosure of “confidential, sensitive, or non-public” information unless you provide examples,
- Require employees to state on every post that they are stating their opinion and not the employer’s (but it’s ok to require this somewhere on their personal accounts), or
- Require employees to bring “work-related concerns” to the company first.
The only policy described in the NLRB report that found to be lawful was narrow and specific. It prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”
These policies are hard to write and a lawful one requires the employer to accept that they can’t control what their employees say outside of work and that, in a lot of cases, the employees can voice harsh judgment about the company without being at risk of getting fired as long as it’s a protected concerted activity.