At a time when employees are networking online in new ways, they are also posting online – on sites like Facebook, Google, and other social media sites – and at times these posts are rants about their employer. The question is when can you fire an employee for posting something online?
The National Labor Relations Board, the government agency tasked with investigating unfair labor practices, has come out with some guidelines for what employers can and cannot include in social media policies.
There are five main situations in which an employer cannot fire an employee for social media activity:
- Seeking the opinions of co-workers regarding a work issue online.
- Posting about job performance or staffing issues with co-workers online.
- Protesting supervisory action with co-workers online.
- Continuing a course of concerted activity that began at work by posting online.
- Sharing concerns about the conditions of employment.
More broadly, three factors are generally considered when deciding whether a social media post is activity protected under federal labor laws:
- Whether the post was made regarding the workplace environment – posts that broadly discussed work conditions were generally found to be protected.
- Whether the post was made on behalf of or with the object of preparing for group action – comments made on behalf of just one employee and directed to non-coworkers were not protected, nor were general complaints about the workplace not aimed at inducing group action. However, in some cases a comment made by a single employee without any other reaction from other employees may be protected if its aim is to initiate a group of employees to action.
- Whether the social media posting was a continuation of a preexisting conversation among employees – social media statements that were begun as discussions of concerns at work are generally allowed.
Notably, even the use of crude or insulting language in the posting relating to the employee’s place of work or supervisor(s) is usually not enough to remove it from protection.
Employers may still prohibit postings that threaten, intimidate, or harass coworkers or supervisors, or those that violate policies against discrimination, harassment, or hostility based on age, race, religion, sex, or other protected classes/characteristics – as long as it does not otherwise restrict the employee’s right to discuss work issues.
Although the NLRB has begun to acknowledge that statements made on social media sites have the potential to be more damaging to a business than typical “water cooler talk” in an office, the Board has still come down as highly protective of employees in this context. Employer policies on such postings and discussions cannot restrict employees’ speech more than federal labor law allows – so in general, anything an employee posts regarding wages or work conditions must be allowed. Employers must exercise caution when deciding whether or not to take disciplinary action against employees who post about work on social media sites, as the policies heavily favor employees at this time.