Rochester Business Journal
Imagine that you are browsing Instagram and notice that one of your employees — you know, that nice, quiet kid who works down the hall — posted something about your business with a picture of your logo. At first you get excited, “Look at this employee taking some marketing initiative.”
However, when you look closer, the excitement is quickly replaced with dread. The post is actually an expletive-filled screed criticizing your business and you personally.
What do you do? What can you do? Can you fire or discipline the employee? Can you require the employee to delete the post? Can you sue for defamation or copyright infringement?
Unfortunately, the answer is: “It depends.” Depending on the most minute details — like the subject of the post, whether anyone “liked” it, when it was posted, and so on — what you view as a defamatory attack on your business and personal honor may also constitute protected speech under the law, leaving you unable to do anything about it.
Under the federal National Labor Relations Act, most employees have the right to engage in “concerted activities for the purpose of… mutual aid or protection.” In layman’s terms, this means that under the law, employees are free to advocate about and work together to change the terms and their conditions of employment, regardless of their union status. Among other things, this means that employees have the right to discuss, whether in public or private, their pay, hours, working conditions, and other work matters that affect them collectively. Accordingly, whether an employer can take disciplinary action against an employee who posts critical comments on social media will rest upon, among other things, whether the comments constitute such protected “concerted activity.”
As you are likely aware, social media postings are not always thoughtful, kind or professional. In fact, they can often be unprofessional, argumentative and even crude. Unfortunately, even the most obscene post or comment may still be protected if it meets the definition of “concerted activity.”
The following two decisions from the National Labor Relations Board (“NLRB”), the federal agency that enforces the National Labor Relations Act, highlight the distinction between protected “concerted activity” and unprotected speech:
The NLRB held that a sports bar illegally disciplined and fired employees who engaged in an online Facebook discussion about the employer’s method of withholding income taxes. Although the comments were profane and critical of the owner (even referring to him as a term related to the human anatomy), the NLRB found that the discussion constituted protected concerted activity and was not so disloyal or defamatory as to lose protection under the National Labor Relations Act. Accordingly, the employer was required to, among other things, reinstate the terminated employees and pay back wages.
A car dealership let a customer’s child sit in the driver’s seat of a Land Rover and the child accidentally pressed the gas pedal, driving the vehicle into a pond. Later, one of the dealership’s sales clerks posted a picture on Facebook of the submerged vehicle and wrote: “This is your car. This is your car on drugs.” The employer terminated the sales clerk and the NLRB upheld the termination, finding that the speech was not related to the terms and condition of employment of the dealership’s employees and, therefore, did not constitute “concerted activity.”
While the distinction between these two cases is fairly obvious, there are many situations that may be more complicated. For example, what if an employee voices a purely personal gripe about his or her boss on Twitter? Something like, “Geez, my boss has the absolute worst comb-over! Thinking about buying him a pair of clippers for the Holidays.” On its own, that tweet would likely not be protected because it does not involve other employees or working conditions, and, therefore, may not constitute “concerted activity.” Discipline away!
However, if a co-worker retweets the first employee’s post and adds that same boss harasses employees and does not pay employees fair wages, the discussion may then become protected, especially if the first employee replies in agreement and continues the conversation. This will likely remain the case even if the co-worker agrees about the comb over and hurls other inflammatory insults.
The key in any employee social media dilemma is to remember that every situation is different, and the NLRB will look closely at the specific facts and circumstances surrounding both the employee’s post and the employer’s response. As such, you should be careful not to make decisions about such matters too quickly or without consulting legal counsel.
Remember that these protections apply not just to employees’ online speech but also to speech and activities inside and outside of the workplace. For this reason, the NLRB has been critical of any employer policies that limit (or could be interpreted to limit) employee communications about protected matters, including social media policies, solicitation policies, confidentiality policies, work rules, etc. As such, we strongly recommend that employers review their workplace policies and handbooks to ensure that they are not inadvertently violating the National Labor Relations Act or other laws.
So next time you are scrolling through Twitter or catching up on your Snapchats, I hope you remember this little lesson about the National Labor Relation Act. Maybe for a follow up I’ll post an interpretive dance about “concerted activity” on TikTok!