Workplace Social Media Policies Cannot be Overbroad
October 22, 2013
As social media sites gained popularity, employers often disciplined or terminated employees who made negative remarks regarding their workplace online. In fact, many companies instituted policies that specifically limited the kind of information that employees could post on their personal social media profiles. Violating these policies has resulted in terminations, and many former employees have brought cases claiming they were wrongfully terminated in violation of their rights to free speech.
Traditionally, employees have had the legal right to discuss workplace matters or express dissatisfactions with one another. This type of expression used to happen in company cafeterias or at work happy hours, however in recent years, social media has largely become the new “water cooler.” Many Americans who have social media profiles are connected or “friends” with fellow co-workers online. Often times, one disgruntled employee may complain about the workplace on a status update and other employees will chime in by commenting or re-posting. This situation has become commonplace. However, a large number of companies had put in place social media policies that generally prohibited employees from discussing company matters or from making disparaging comments regarding the company, managers, or co-workers online.
Recent NLRB Advice
This situation is illustrated by a recent case examined by the National Labor Relations Board (NLRB) regarding employees of a non-profit company in New York. One employee had taken to Facebook to complain about working conditions and several other colleagues posted angry comments in agreement. The company fired five of the employees involved for the Facebook activity. The NLRB found that the employees were wrongfully terminated for concerted activity that is protected by the National Labor Relations Act (NLRA). Even though these employees were not in a union, the NLRB said these protections expand to non-unionized private sector employees, as well.
The NLRB issued an advice memo that seems to apply traditional rules of what employees may or may not say to online territory. The NLRB warned companies that overbroad social media policies will infringe on employees’ rights to criticize work conditions or treatment of employees. For example, General Motors’ policy prohibited “offensive, demeaning, abusive or inappropriate remarks,” and Costco’s policy disallowed any comments that “damage the company” or “any person’s reputation.” The NLRB found that such policies prohibited a broad spectrum of possible online communications that employees have the right to engage in under the NLRA.
Furthermore, companies cannot simply disallow the posting of “confidential information,” without further specifying which types of information are considered to fall into that category. Instead, the policy should state exactly what kind of information is prohibited, such as trade secrets, client information, unreleased product information, or private health details.
Many companies are complaining that the NLRB is applying concerted activity rights typically associated with unions to the private sector in general, however the NLRB responded that all employees have these free speech rights and the rights to converse with fellow co-workers regarding their employer. These rights do not change simply because the conversation takes place online and not in person.