Montana Employment Law Tips

Employee Comments On Social Media: 5 Tips for Handling By Robin Thomas, Managing Editor
February 3, 2015, Volume 17, No. 5
Can you discipline employees who post negative comments on Facebook, Twitter, or other social networking sites? It depends on the topic of the comments and whether the employee is engaging in protected “concerted activity.”

Q:       How should we deal with employees who post negative comments about our organization on Facebook or other social networking sites? One of our managers discovered that an employee had posted extremely unflattering comments about our company and her manager on her Facebook page.
A:        If you are like most employers, your first reaction may be immediately to discipline or even terminate the employee. And, as a general rule, assuming that your employee is “at will,” you may be within your legal rights to take some action based on Facebook or other social media postings. (As a reminder, an employee is considered “at will” if she does not have a contract guaranteeing employment for a specific period of time (such as one year) or limiting disciplinary action or termination to certain circumstances (such as gross misconduct or only after following certain procedures).)  But, employers have been targets of recent court and National Labor Relations Board (NLRB) cases when they terminated employees who “mouthed off” about their workplace online. Specifically, if an employee is disciplined for inappropriate use of social media, she may have a claim under the National Labor Relations Act (NLRA) if her social media post addresses terms and conditions of employment. The NLRA gives employees the right to self-organize; to form, join, or assist labor organizations; to bargain collectively through their own representatives; and to engage in other concerted activities for collective bargaining or other mutual aid or protection. Courts and the NLRB have applied a broad definition to the term “concerted activity” so that, generally, an activity must center on a controversy involving the terms and conditions of employment to be protected. Thus, if employees take action as a group to complain about their employer’s policies, their actions may be protected. As an example, if employees use a social networking site to complain to each other about pay or other conditions of employment, an employer may violate the NLRA if it disciplines the employees for the postings on social media. In Three D, LLC, d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (Aug. 22, 2014), the NLRB determined that the employer unlawfully terminated two employees for complaining about perceived errors in the employer’s tax withholding calculations. One of the discharged employees was terminated for selecting the “like” option in responding to a Facebook posting, and the other referred to the company co-owner with an expletive in discussing the situation. Both were participating in an ongoing Facebook discussion of the employer’s calculation of employee tax withholdings. The NLRB did not agree with the employer that the employees’ comments were so disloyal or defamatory to lose the protection of the NLRA. However, if an employee is complaining individually on a social networking site about conditions in the workplace, this communication may not be protected. So, in World Color USA, 360 NLRB No. 37 (Feb. 12, 2014), the Board determined that an employee’s Facebook comments were not protected even though they criticized the employer and may have referenced a union. The employee did not provide a print out of the comments and there was no evidence that they concerned terms and conditions of employment, nor that the posts were intended for, or in response to, the employee’s coworkers. In addition, social media policies could be interpreted to have a “chilling effect” on employee organizing if they appear to ban communications that could be protected under the NLRA. Again from above, in Three D, LLC, d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (Aug. 22, 2014), the NLRB determined that the employer’s social media policy prohibiting employees from engaging in “inappropriate discussions about the company, management, and/or coworkers” was overly broad and did not contain specific examples to show that it was not intended to prohibit protected activity. Clearly, then, the law surrounding social media policies and disciplining employees for online activity is confusing and is continuing to evolve. So, before you take action, you should consider five factors to determine what type of discipline is appropriate:
1. Consider how your organization found out about the online comments, and particularly whether you found out about them through lawful sources. For example, did another employee or manager who is the employee’s Facebook friend tell you or did a manager find out by accessing the employee’s Facebook page without authorization? If you accessed the information without authorization, that access may be illegal under the federal Stored Wire and Electronic Communications and Transactional Records Access Act (SWECTRA). Similarly, did you require the employee to provide you access to her online accounts? This action may be unlawful in several states (including California and Illinois) that ban employers from requiring employees to provide access to social media accounts. But, if you read the employee’s comments because you are the employee’s Facebook friend or another employee who is a Facebook friend reported the comments, then you may be able to take action.
2. Determine whether the employee was acting alone or engaging in “concerted activity” protected under the NLRA. As discussed above, the NLRA gives all employees, not just union employees, the right to engage in “concerted activities for collective bargaining or other mutual aid or protection.” This entitlement has been interpreted to protect nonunion employees who question the terms and conditions of their employment, such as their wages, work hours, and working conditions. So, if an employee is complaining on Facebook or other social media about her working conditions to other employees, or if she is acting alone but on behalf of other employees to change working conditions, then these complaints may be protected under the NLRA.  What is less clear is what protections an employee has if the employee only makes negative comments about a supervisor or her workplace without specifically addressing her working conditions. For example, if she had posted an expletive-laden tirade targeting her supervisor or her employer, those comments likely would not have been protected. Accordingly, you must look at the context of the posts before taking action.
3. If the employee’s comments are not protected by the NLRA, you should consider the nature of the comments and her past performance record. Is the employee complaining about her job situation or making disparaging or inappropriate remarks about her employer? If the employee has never complained about her job and is generally a good employee, you may want to have the employee’s manager talk to her about the comments and determine what steps you all can take to improve her working situation. However, if the employee is in fact a poor performer and is constantly complaining in the workplace and also referred to her manager using obscenities on Facebook, you may want to take action based on all of these factors (not just the posting). Be careful, though, in your disciplinary choice. While you most likely could discipline or even terminate an employee just based on social media postings expressing her discontent, your other employees likely would perceive this action as being heavy-handed and not warranted if there are no other underlying performance problems.
4. Make sure you are treating the employee consistently under your policies and procedures. In other words, if you discipline the employee, make sure you can show that she is being treated in a similar manner to other employees who have violated similar company work rules. For example, you may have a policy addressing harassment similar to the model policy in our HR Matters Tools and Resource Center, Productive Work Environment; Chapter 201A, that specifies what conduct is considered harassing and improper that you could take action upon. Or you might have a social media usage policy that describes proper personal use, such as in the model Use of Communication Systems and Social Media policy in Chapter 805. Of course, as discussed above, your policies may be subject to scrutiny by the NLRB if they are overly broad or if they could be interpreted to prevent employees from exercising their legal rights.
5. As a final prudent step, if you have any question about the nature of the employee’s comments, consult with your attorney before taking disciplinary action. The legal standards that apply to Facebook and social media use and disciplinary action will continue to evolve, rapidly, and what was okay earlier this year may not be so in six months. The use of Facebook and other social media Web sites has exploded over the last few years (Facebook alone has over a billion users), so you can expect more cases dealing with social media postings and workplace rules in the future.
Reprinted with permission from HR Matters, copyright Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR Policy and Employment Law Compliance Experts for 40 years, 1-800-437-3735. Personnel Policy Service markets group legal service benefits and publishes HR information products, including the free weekly electronic newsletter, HR Matters E-Tips (www.ppspublishers.com/hrmetips.htm). This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

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