Employees Have the Right to Post on Social Media

As an increasing number of Americans use social media, questions on the legality of workplace policies limiting certain behaviors online have begun to arise.

As the use of social media sites like Twitter and Facebook increase, employers have implemented rules limiting what employees can say online about their workplace and employers. Some companies have implemented policies that restrict what an employee can say about co-workers. However, the National Labor Relations Board (NLRB) has ruled many of these policies are too broad and the restrictions illegal.

The NLRB, an independent agency of the U.S. government, mediates disputes between employees and management.

The NLRB issued its first rulings on employer social media policies in late 2012. These rulings are important because they offer guidance on what social media behaviors will be protected under the National Labor Relations Act (NLRA) in the future. This also affects what employers can and cannot control in their company policies and practices.

Section 7 of the NLRA permits employees to engage in “concerted activities for the purpose of collectively bargaining or other mutual aid or protection.” Because of this stipulation, employees are protected if they discuss job-related issues such as improving work conditions, benefits and wages. This also means, even on a social media site, co-workers may discuss the conditions of their employment.

Under Section 8 of the NLRA, employers are prohibited from interfering or limiting employees from exercising those rights mentioned in Section 7.

In one of its most notable cases, in September 2012, the NLRB ruled that the Costco Wholesale Corporation violated Section 8 of the NLRA by upholding a rule that forbids employees from electronically posting statements that could damage the company or any person’s reputation.

Since Costco’s policy broadly limited any statement that could negatively affect the company, the NLRB held that the policy infringed on the employee rights protected in Section 7.

In 2010, several employees of Hispanics United of Buffalo, a nonprofit social services provider located in upstate New York, were fired over their Facebook posts about complaints made by a fellow employee.

In December 2012, the NLRB ruled the employees had been wrongfully terminated. It found that the posts were the type of “concerted activity” that is protected by the First Amendment.

Employers still have limited rights to protect legitimate company interests such as confidential business information, trade secrets, or an employee’s private health details.

Placing limits on social media posts made by employees without overstepping legal boundaries remains difficult for employers. However, employees engaged in “concerted activity” via a social media site are now just as protected as when they are on company property.

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