Employers struggle with the idea of social media in the workplace and
how to use this media for appropriate internal and external publicity
purposes while managing confidentiality and trade secret concerns as
well as the morale of employees who may be subject to bullying or
inappropriate treatment on the web.
Recently, many employers have expressed concern about a prior National
Labor Relations Board (NLRB) case which indicated that an employee who
had made "water cooler comments" and complaints about the workplace
could not be terminated for violation of the internal workplace rules
regarding social media postings.The NLRB position was that this might
have been an impediment to her ability to organize under the National
Labor Relations Act (NLRA) and was a potential violation of the Act.
Plaintiff's attorneys have been pointing to this case, even though the
case itself had never been decided and was settled prior to any hearing,
as evidence that Facebook is a sacrosanct area and employees can say
whatever they want.
The NLRB has pulled back from this position and indicated that many job
related complaints and statements on Facebook are actionable by the
employer. The NLRB has recently issued three memorandums to the regional
offices including J.T.'s Porch Saloon and Eatery ltd., NLRB division of
advice No. 13-CA-466897711; Martin House, NLRB Division of Advice No.
34-CA-12950719; and Walmart, NLRB Division of Advice No .
17-CA-2503071911 on this matter. In each of these instances, the
employees made complaints about their workplace and their employer, but
the NLRB, through its general counsel, determined that these were simply
complaints and that they did not rise to the level of activity under
the NLRA. NLRB general counsel grouped the distinctions into three
The first that the postings related to work not working conditions. In
one instance, the employee made uncomplimentary comments about patients
she was serving which ultimately resulted in her termination. This was
determined to be a work issue, not a working condition. If the NLRB
spent more time with the Office of Civil Rights, they might have decided
it was also a HIPPA issue.
Second, there is no indication in each of these cases that the activity
grew out of an attempt to participate in "concerted acts," or third,
grew out of prior discussions regarding workplace conditions and
concerns. Concerted activity is frequently viewed as something that
occurs when employees have been speaking with each other about systemic
problems. The "grow out" exception relates to workplace conditions and
concerns regarding workplace acts. Simple complaints, as occurred in the
Wal-mart case where an employee complained, with a significant amount
of profanity, on his Facebook posting that he had been "chewed out" for
misplacing stock and a number of other items, wasn't deemed to be
concerted activity in an attempt to change workplace conditions for the
employee or group as a whole. It was simply the standard behavior that
we see on most Facebook pages, which is "my boss is a jerk".
While these statements from general counsel take away some of the sting
that was created by the prior NLRB case, it is important to note that
you need to make a distinction between the types of comments that are
truly worth your time and attention as an employer and just the general
background noise which is most of what your employees produce as
Internet chatter. In general, employees are not going to have an
enormous following. They are not Charlie Sheen, Britney Spears, or
anybody else that is going to generate thousands of followers. Any
damage they do is going to be relatively localized to a few people who
are willing to pay attention to them and overlook their spelling errors.
In general, it is not worth getting worked up over the "my boss is a
jerk" type of comment. There is so much of it, (along with dancing cat
pictures) that you would spend a significant amount of time attempting
to enforce any Internet standard that doesn't allow an employee to say,
"I don't like my job". However, any comments that relate to patient or
resident care, trade secret information, information relating to
harassment, bullying or other inappropriate behaviors in the workplace
or similar items which amount to potential legal violations should be
investigated and resolved by you as the employer.
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