Social Media – When Can I Discipline? #URFired

Thanks to social media platforms, we are living an age where the boundaries of the workplace are nebulous. Social media has enabled us to promote our businesses, network with our communities, and cultivate a public image. It has also created a space for anonymous comments to go viral and for employees and customers to bad-mouth companies. As an employer there are limitations on when you can discipline and what social media policies you can implement.

What can employees post on social media?

Beginning in 2010, the National Labor Relations Board (NLRB) began investigating charges involving employees who were disciplined for posts about their working conditions and employers’ social media policies. The NLRB is responsible for enforcing the National Labor Relations Act. The Act protects what is called, “protected concerted activity.” That term refers to the right of private-sector employees to act together to try to improve their pay and working conditions or fix workplace problems, whether or not they are in a union. The “activity” must either engage with other employees, act with the authority of other employees, or it must seek to bring a group complaint to management’s attention. That activity is generally “protected” so long as it concerns the employees’ interest as employees.

Let’s begin with a few hypotheticals:

·        Sally posts on Facebook a copy of her paycheck and tags two co-workers. She writes: “F@#% Pizza Burgers, Inc.! We need to make more $$$$ for what we put up with!!”

o   Can you discipline her for this post? No. Here, Sally is tagging her co-workers to initiate a discussion about their pay and working conditions.

·        Ice Creamcicle, LLC is holding a competition for employees to have the most re-tweeted tweet with “#IceCreamciclerocks.” Johnny tweets: “@IceCreamcicle Your ice cream is soup bc we don’t get A/C in the summer #IceCreamciclesucks”

o   Can you discipline him for this tweet? No. Johnny’s tweet concerns the working conditions of his employment. He is not individually griping about his workplace. Instead, he is bringing a group complaint to management’s attention. This tweet is also part of a social media campaign among employees, so it is likely to initiate or induce a discussion about the lack of air conditioning at work.

One more . . .

·        David posts a picture of himself on Instagram at a baseball game when he was on sick leave. His post says, “This is ill. Out on SLICK leave.”

o   Can you discipline him for this post? Yes. The key to the Act is some relation to group action. David is posting about abusing sick leave. This post doesn’t seek to initiate, induce, or prepare for group action.

The solution may seem to have a strict social media policy prohibiting employees from posting “offensive” language or disparaging the company. However, this is also a violation of the Act. Your social media policy can’t be so broad that it could include protected concerted activity. You must clearly indicate in your policy that any rules regarding what can be posted does not apply to your employees’ right to engage in protected concerted activity.

The upshot is that the workplace and federal law is evolving with social media. There are also many grey areas. Work with your HR Department and/or an attorney when you draft your social media policy. Before disciplining an employee for a social media post, consult your HR Consultant. Employees should think before they post. Employers should think before they discipline.

Want to know more about the NLRB and social media? Check out this link: https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

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