Social Media Policies and Employee Rights
Grumbling about your job on Facebook isn’t a smart move. Some companies have a policy against complain online, and if you violate it, you may be fired — but the matter isn’t so clear-cut. In some cases, the National Labor Relations Board, or NLRB, a labor union group, says you have a right to voice your opinion without fear of retribution, whether the conversation happens in the office, or on Facebook.
What’s Happening
The NLRB, in a 3-to-1 decision, concluded companies cannot fire employees in response to Facebook posts.
In 2010, Mariana Cole-Rivera, an employee at Hispanics United of Buffalo, or HUB, a social services provider in New York, posted a message on Facebook, asking fellow workers how they felt about accusations that they weren’t working hard enough. Several colleagues replied with angry, often with expletive-laden, responses, like “What the hell, we don’t have a life as is.” A co-worker saw the messages and reported it to supervisors, who then fired employees, citing a company policy about the cyber-harassment of co-workers.
The NLRB sided with the workers, pointing out that under the National Labor Relations Act, or NLRA, they had the right to talk to each other about improving work conditions, even on Facebook. The NLRA, established in 1935 to protect the right to strike and picket, was used to order HUB to pay back wages and reinstate Cole-Rivera and the other fired employees.
“The board’s decision felt like vindication,” said Cole-Rivera, who has since found another job. But Rafael Gomez, a lawyer for HUB said the company would appeal the decision.
What’s Really Happening
The ruling is a blow to companies with broad social media policies. But before you take to Facebook to vent, the ruling doesn’t give you carte blanche to blast your company. Comments that aren’t characterized as promoting a “better workplace” aren’t protected by the federal law. For example, Brian Hayes, a NLRB member who didn’t support the decision in the HUB case, characterized the Facebook posts as “simply venting.” Hayes didn’t see the posts as “concerted activity,” and said employees shouldn’t be protected from termination.
Similarly, the NLRB found an Illinois establishment was lawful in firing a bartender after he took to Facebook to describe customers as “rednecks” and wished them harm, because he was unhappy about his pay. Labor officials categorized his remarks as “personal venting,” and not the “concerted activity” of improving wages and working conditions.
What’s Next
Companies need to clarify and tighten their social media policies, making sure they don’t interfere with the right to communicate about issues like working conditions, wages or benefits. Businesses nationwide — including giants like Target, GM and Costco — need to revisit their policies in light of the rulings.
The NLRB has already put several companies under the microscope. In a series of reports, NLRB general counsel Lafe Solomon concluded many firms have rules that are too broad, which hinder their workers’ rights. The NLRB, for example, criticized GM’s ban on “offensive, demeaning, abusive or inappropriate” remarks as “out-of-place online as they are offline,” saying it was too broad and vague. In September, the board also rejected Costco’s ban on posts that “damages the company” or “any person’s reputation,” saying the rules were overly vague.
Corporate rules on social media won’t go away, but instead the NLRB’s policy will push companies to be more specific. Denise Keyser, a labor lawyer, said firms should adopt rules that are detailed, and not impose blanket bans. For example, businesses should mention they’ll take action against leaks in trade secrets, product specs or private health records. By being specific, both employees and management will better navigate the gray area of social media.
The NLRB gave high marks to Wal-Mart’s social policy. The retailer revised its ban on “inappropriate postings” to include “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
The Takeaway
Score one for workers, but the struggle between bosses and employees continues as both parties use traditional rules in a digital age. The choice to use the NLRA in social media brings early labor law into the 21st century, but don’t expect businesses to take the decision lying down. Some companies are protesting, claiming the ruling takes a law to protect unions from yesteryear, and unlawfully applies it to digital activities today.
“The board is using new legal theories to expand its power in the workplace,” said Randel Johnson, the U.S. Chamber of Commerce’s senior vice president for labor policy. “It’s causing concern and confusion.”
The issue of workers’ rights and social media are far from resolved, and conflicts about what you can or can’t say will flare up. The NLRB upheld its decision, but those rules are narrow in scope — your boss can still fire you for all kinds for reasons. So unless you’re in a union or you’re a public employee, you may still be liable if you volunteer at an AIDS foundation, put the wrong candidate’s bumper sticker on your car or criticize your company on your senator’s Facebook page.
These battles are part of a larger war over what’s appropriate on Facebook. Schools and universities, law enforcement and politicians are grappling over the legalities of social media, even as federal courts rule Facebook is not constitutionally protected speech. States are weighing in too. Illinois and California, for example, became the fifth and sixth states to ban employers from asking for social media passwords from job applicants or workers.
The result is a patchwork of policies, laws and regulations without a clear sense of boundaries — and social media and free speech remains an ambiguous and fraught minefield. “Even when you review the NLRB rules and think you’re following the mandates, there’s still a good deal of uncertainty,” said Steven Swirsky, a labor lawyer at Epstein Becker & Green.
The ruling is a gift for employees and a lump of coal for businesses looking for ever-greater control. Both sides will continue to fight over the gray areas, but social media will only widen the battle rather than close the gap, at least for now.
