The social media revolution has changed the modern workplace in ways that could not possibly have been foreseen when the bulk of our federal labor and employment laws were debated and enacted. Don‘t forget, Facebook didn’t begin operating until 2004! The result, of course, was the creation of a host of grey areas for corporate officers and legal professionals charged with ensuring employer compliance with statutory and regulatory law that took effect long before social media changed the way we live and work.
Significant uncertainty remains on how to respond – if at all – to social media posts that disparage the company’s brand.
Most large and/or more sophisticated employers have moved past kneejerk disciplinary action against employees who post unfavorable messages about their employer. Nevertheless, significant uncertainty remains on how to respond – if at all – to social media posts that disparage the company’s brand.
To properly consider the correct course of action, a quick review of the National Labor Relations Act (NLRA) is necessary.
The NLRA was enacted in 1935, during the middle of the Great Depression, in order to give workers the right to band together for their economic well-being, thereby creating some balance in the relationship between employers and employees. The NLRA accomplishes its objective by granting employees the legal right to engage in “protected concerted activity”, which was largely viewed as the right to form and join labor unions. Specifically, Section 7 of the NLRA provides that:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment . . .
Section 8 of the NLRA sets forth certain employer unfair labor practices (ULP(s)), all of which are intended to protect employees’ Section 7 rights.
The National Labor Relations Board (NLRB) is the federal agency charged with enforcing the NLRA. Aggrieved employees can file a ULP charge against their employer, and the NLRB will investigate and prosecute any violations of law. While this process is essentially free for employees and unions, there are significant costs for employers who must litigate before the NLRB, including backpay and benefits to unlawfully discharged employees and reputational damage in the public eye. Historically, the NLRB wins 85 – 90% of all ULP cases it brings to trial!
According to the NLRB, Section 7 gives employees and unions the right to engage in economic warfare against an employer.
Although Sections 7 and 8 have typically been applied to pro-union activities, the activities of individual employees are also protected, if those activities relate to their terms and conditions of employment, regardless whether a union is involved. Simply stated, if employees are posting comments about their or their coworkers’ terms and conditions of employment, the great likelihood is that such statements will be deemed “protected concerted activity” by the NLRB. If so, employees cannot be disciplined for such activities, even if their social media content will have a negative effect on the company. According to the NLRB, Section 7 gives employees and unions the right to engage in economic warfare against an employer.
Is Social Media "Protected Concerted Activity" Under Section 7?
The first step in determining whether an employer can discipline an employee who publishes disparaging social media content is to determine whether the subject matter of the post involves the employee’s terms and conditions of employment. Under Section 7, employees are free to complain about their terms and conditions of employment. Traditionally, such conduct was described as “water cooler talk,” which the NLRB deemed lawful, even if the employees’ statements about their employer and/or its supervisory and management personnel were critical or embarrassing – as long as their conversations related to the employees’ terms and conditions of employment.
The NLRB has broadly defined “terms and conditions of employment”, which include but are not limited to:
- Working conditions
- Hours of work
- Safety issues
- A grievance and arbitration process
- Leaves of absence
- Performance reviews
- Respect, integrity and culture issues
The fact that “water cooler” conversations now occur via social media postings, which can be viewed by members of the public, including customers, does not mean that employees are no longer afforded the protection of Section 7. According to the NLRB, the water cooler is now open to public participation.
After determining what the employee(s) is communicating about, the second step is to determine who the employee(s) is intending to reach. This inquiry is necessary in order to determine whether a single employee’s activity is “concerted”. Activity is considered concerted, and therefore subject to the protections of Section 7, if an employee is talking to one or more co-workers about their terms and conditions of employment.
A single employee may also engage in protected concerted activity if he or she is 1) acting on the authority of other employees, 2) bringing group complaints to the employer's attention, 3) trying to induce group action, OR 4) seeking to prepare for group action.
Needless to say, the NLRB defines “concerted” in the broadest possible way. The problem in analyzing whether statements are “concerted” in the social media context, however, is that the typical post is addressed to no one. For instance, an individual might post an unaddressed message on his/her public Facebook page, but phrase it in such a manner as to invite other employees to respond.
Eliminate the Reasons Why Employees Resort to Social Media to Make Complaints
In a unionized environment, social media posts can be effectively dealt with in the collective bargaining agreement itself and/or the unionized employer’s work rules. Plus, the validity of any disciplinary action will usually be resolved through a collectively bargained grievance/arbitration procedure.
The most prudent approach to the regulation of a non-union employee’s use of social media to denigrate his/her employer, is to take away any impetus for an employee to make his/her complaints.
In a non-union environment, however, the propriety of disciplinary action related to social media content will most often be investigated and determined by the NLRB – and no right-minded employer should want the NLRB anywhere near in its business. See above!
All things considered, the most prudent approach to the regulation of a non-union employee’s use of social media to denigrate his/her employer is to take away any impetus for an employee to make his/her complaints.
Develop and Implement a Balanced Social Media Compliance Policy
The first step is to implement a well-formulated social media policy. This policy shouldn’t restrict employees from exercising their Section 7 rights in any way. It should, however, state that all policies and procedures that apply to the workplace also apply to employee conduct on social media. Anti-harassment, anti-discrimination, and anti-bullying policies, among others, should all apply to digital conduct.
The policy should also state that defamatory speech is not acceptable. Keep in mind, however, that defamatory speech is not that same as disparaging speech. Employees are allowed to state derogatory opinions about their employer, if the words used constitute a form of concerted activity. That said, employees are not permitted do defame their employer by propagating recklessly false statements. For example, an employee is allowed state his/her opinion that his/her boss “is a jerk who doesn’t know what he’s doing.” An employee is not permitted to defame his/her employer, with a statement like “my boss is a drug dealer and a thief,” if the employee knows this not to be true.
Create a Culture of
"Speak Up and Be Heard"
Not surprisingly, there are some individuals out there who gripe about their employer as an avocation. If you have one, proceed with care, after consulting with labor and employment counsel. For most employees, however, their resort to social media is most-often motivated by real-life workplace issues, coupled with the employee’s belief that he/she hasn’t been heard by the employer.
Create a safe and open workplace environment where employees are actively encouraged to speak-out about any and all aspects of their job.
The tried and true approach for dealing with employee discontent is the creation of a workplace ethic whereby workplace issues are raised and resolved on-site, and when the issue(s) first comes to light. Among other things, policies and procedures should be put into place which, taken together, create a safe and open workplace environment where employees are actively encouraged to speak-out about any and all aspects of their job. The tools used can include internal complaint procedures, whistleblower hotlines, voluntary arbitration for termination cases, supervisor training, and an active, participative HR department, to name but a few.
Once in place, take steps to ensure your employees are aware of all the channels available to them should they have a problem on the job, including any issues with supervision. Naturally, these types of policies must be supported by a corporate culture of trust, whereby employees feel safe to report – and complain – without fear of retaliation by the boss.
Bob Corlett, President and Founder of Staffing Advisors and HR Examiner Editorial Advisory Board Member may have put it best: “Bad online reviews are not an online problem. They are a real-life problem. If you own a restaurant, the solution to your bad restaurant reviews is not found online – you solve it in the kitchen.”
While the law governing social media is continually evolving, fostering an environment where employees feel comfortable expressing themselves to their employer is always the safest harbor.