In the last couple of years, many employers have been adding Social Media policies to their Employee Manuals, often prohibiting employees from discussing all company matters publicly or from disparaging managers, co-workers, or the business itself online. A violation of these policies has often been cited as a firing offense. The question is how enforceable are these policies and how far can an employer go in regulating what its employees are saying about the business or the working conditions on sites such as Facebook or Twitter?
Thankfully, several opinions and memorandums issued by the National Labor Relations Board (The Board) provide some very useful guidance. Here’s a quick summary of do’s and don’t of social media for both employers and employees:
1. Discussions of working conditions, wages, or benefits are protected. Under Section 7 of the National Labor Relations Act, all employees (not only the ones unionized) have the right to “engage in … concerted activities for the purpose of collective bargaining or mutual aid or protection.” The Board considers that any social media policy that discourages workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions, are likely to be in violation of Section 7.
For example, in Hispanics United of Buffalo Inc. and Carlos Ortiz, 03-CA-027872, several employees posted angry comments criticizing one of the other employee’s statements that they were not doing their work. All five were fired. The Board ordered their reinstatement and held that the employees were united by common cause, and engaged in a concerted activity for the “purpose of mutual aid or protection” as allowed by Section 7.”
2. Personal venting or rants are NOT protected. The Board has previously found that an employer can fire an employee for offensive and inappropriate Twitter postings that do not involve protected concerted activity. See The Board’s Advice Memorandum to Arizona Daily Star, 28-CA-23267. In this case, a police reporter kept making distasteful comments about Tucson’s homicide rates, criticized another department at his newspaper, and called other media people “stupid” – all from his Twitter account linked to Arizona Daily Star. The Board found that the employee’s “conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.” Thus, the newspaper was within its rights to fire him.
3. Disclosure of confidential information or trade secrets is NOT protected. An employer can prohibit employees from disclosing company’s trade secrets in social media. However, employees still retain the right to discuss their wages, workplace conditions, or employees’ or company performance under Section 7. See Point 1 above.
4. Prohibition of colorful language, expletives, distasteful remarks (also known as “Courtesy Clause”) is unlawful. The Board has held that courtesy clauses violate the National Labor Relations Act because they may be construed to restrict employees’ rights to publicly criticize their employer. See Karl Knauz BMW, Knauz Auto Group, 13-CA-046452. Therefore, while, an employer might find some of its employees’ comments distasteful or rude, as long as such comments are part of a concerted activity, they are lawful and cannot be used as grounds for termination.
5. Employee opinions are protected even if factually wrong. The Board’s view is that as long as the purpose of a social media discussion is to come to a collective understanding or action, employees should be able to express their opinions, even if their statements are not entirely factually correct.
6. Harassing, violent, abusive, or malicious statements are NOT protected. Employers always retain the right to prohibit sexual harassment, workplace violence and threats of violence, and abusive or malicious activity, and should include such clause in their social media. However, the clause should be narrowly drafted so that it does not discourage or “chill” the protected activity.
BOTTOM LINE for Employers:
1. Have a written social media policy. Some examples can be found here.
2. Make sure the policy is narrowly drafted and does not prohibit or discourage the employees’ right to discuss their work conditions, wages, and benefits or engage in other concerted activities. Use the memorandums issued by The Board as your guide.
BOTTOM LINE for Employees:
Keep in mind that Texas is an at-will state of employment, which means that an employer can fire an employee at any time, for any reason (except an illegal one). Posts that are not related to the place of employment or work duties, are not protected under Section 7 and can be used by an employer as a lawful cause to fire an employee.
For my previous post regarding Social Media, click here.
Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. His practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.