Social media has definitely changed the workplace and the relationship between employers and
employees.
The legal rights for at-will employees, this is becoming a trickier area for both employees
and employers.
The days of, "Oh, it's at-will employment, and as a private sector employee, you check
your First Amendment rights at the door when you come in here," those days are gone.
The National Labor Relations Act provides almost all employees the right to engage in
concerted, protected activity, and I always say that that kind of gives employees the
right to moan and complain about the workplace amongst each other.
So if they're talking to other employees it's concerted activity and they're permitted to
do that whether they're unionized or not, or whether they're thinking about unionizing
or not, if it's with an eye towards improving workplace conditions.
The NLRB has taken a broad, broad view as to what this concerted activity can consist
of, and it can consist of Facebook posts, it can consist of texting amongst a group
of employees if it's about collectively, more than one employee, collectively improving
the work conditions.
So talking about wages, talking about hours, improving the leave policy, the wage policy
at a workplace, all of that can be considered concerted activity, and so even if it's happening
on social media, it's protected activity.
So in those situations, firing an employee might land the employer an unfair labor practice
charge.
There's a lot of noteworthy cases that have come out in the last five years with regards
to social media firings, and I think a lot of them were a disappointment for the employer
community who has seen the National Labor Relations Board intrude more and more into
non-unionized workplaces.
The employer, now, figuring out whether or not disciplinary action can be taken against
the employee can be challenging in light of the NLRB's policies on what is and is not
concerted activity.
And more recently, the EEOC's decisions regarding retaliation and whether or not disciplinary
action against an employee could be perceived to be retaliation in violation of Title VII
of the Civil Rights Act.
So all this to say, when an employee takes what the employer perceives to be inappropriate
action, whether it's on a Facebook post, a blog, or a website, whether or not disciplinary
action is going to require some thoughtful consideration from the employer because of
potentially conflicting federal labor and employment agency decisions.
But that said, an employer can, and in some circumstances absolutely should, fire an employee
for inappropriate use of social media.
Employees need to be careful what they tweet.
They need to be careful what they type.
They need to be careful what pictures they post.
They need to be careful with regards to their responses, even their likes.
If you're making physical threats, discriminatory remarks, sexist remarks, sexual harassment,
that's not going to be protected under the National Labor Relations Act.
The Supreme Court case I go back to was a 1937 decision, Jones & Laughlin Steel.
And in that, the Supreme Court talked about how the NLRA shouldn't really necessarily
abridge an employer's right to terminate an employee at will.
Thinking of some of the cases that we've seen over the years with regards to employees posting
or sending along pornographic materials, racist comments, those sort of things, the sort of
activity that would in no way be construed to be protected concerted activity by the
National Labor Relations Board but simply amounts to a hostile work environment or discrimination.
So employers do need to be careful, but it's not as though employers are powerless.
Having a good policy, laying out ground rules, can go a long way towards protecting the company
from potentially defaming remarks from a disgruntled employee, but at the same time, letting employees
know that they do have rights under the National Labor Relations Act and the employer's aware
of that and is going to consider that in their actions against employees.