We’ve all seen it. Social media photos and rants that affect someone's employment. It is everywhere. I can't tell you how often I run into these stories, and not just the following examples you see on the news:
- ESPN suspended Jemele Hill for what the company is saying is a violation of their social-media guidelines.
- The woman who flipped off President Trump's motorcade last month was fired because she was told she had violated the company’s social media policy by using the photo as her profile picture on Twitter and Facebook.
These actions raise questions about whether it is within the employer’s rights to discipline an employee for speaking out on social media. Hmm... I think the questions are directly related to two legal principles that often become confused:
- First Amendment Right of “Free Speech”
- National Labor Relations Act
I would guess that the majority of American’s know what the First Amendment states, but I believe many people are not familiar with the National Labor Relations Act (NLRA). Congress enacted the NLRA in 1935 to protect the rights of employees and employers.
Employers should know that there is no constitutional duty for them to allow or tolerate "free speech," but they do have to consider the NLRA. In fact, many employers do not realize that certain employee social media activity is protected against employer retaliation. This is a scary area for employers…
- On one hand you have the fear of disgruntled employees doing some serious company brand damage online.
- On the other, you have the risk of being sued for violating the NLRA.
What isn't protected under the NLRA?
Something like a Facebook post regarding wages or working conditions that is shared are forms of "concerted activity" that are not protected under the law.
What is protected under the NLRA?
Other online activities such as an employee engaging in discussions of social issues such as healthcare, education, economy, immigration, unjust treatment, etc. are considered issues of public concern and are protected under the NLRA.
Ok so where am I going with this? Employers need to have a social media policy to supplement an internet use policy.
A few examples of specific issues which should be addressed include:
- Clarifying infringements on company confidential information
- Slanderous or libelous statements that cannot be supported by evidence and are detrimental to the business\
- Stating that comments made are personal opinion and not made on behalf of the company
Lesson to be learned = Don’t expose your company to a lawsuit. Now is a great time to review your company’s policy to be certain it complies with the NLRA but also clearly outlines company expectations.