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Right to Tweet? Social Media & Employment Law [POLICYbrief]


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.

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