According to a recent survey released by Jobvite, 92 percent of employers use or plan to use social networking and social media websites to recruit new employees.
Employers also use these websites to promote themselves, their workplace and their products and services. To control their on-line image, many employers have taken steps to monitor what is said about them on these websites. But when this monitoring includes a review of comments posted by employees, employers may find themselves defending unfair labor practice charges before the National Labor Relations Board.
Over the last two years, the NLRB has addressed more than 35 cases in which an employer disciplined or discharged an employee because of postings on social networking sites. In the vast majority of these cases, the employer had no union in its workplace. There are aspects of the National Labor Relations Act (NLRA) that apply to all employers, union and non-union alike. Consequently, it is important for all employers to understand how the NLRB views employee use of social media.
The NLRA gives employees the right to discuss their workplace and working conditions with each other and with third parties. The board has taken the approach that on-line posts about the workplace might be protected by the NLRA, especially when an employee has a number of co-workers as on-line friends. The board has found that discipline or discharge based on these types of posts are unlawful.
The NLRB has scrutinized employer social media policies. It has invalidated broad or ambiguous policies which could, in the board's view, discourage employee posts, which might be protected by the NLRA. For example, the board has invalidated policies which explicitly restrict posts discussing wages and other terms and conditions of employment. Broad and ambiguous policies which prohibit "inappropriate" or "inflammatory" posts also have been invalidated when it is reasonable for employees to believe the employer's policy would prohibit postings about the workplace.
The board recently clarified that the NLRA does not protect regular employee “gripes” about the workplace, particularly when those gripes are about co-workers. A single complaint by an employee about a co-worker rarely will be protected by the NLRA.
Unfortunately, the line between unprotected employee gripes and protected complaints about the workplace is not bright. Hopefully the NLRB will continue to clarify where this line should be drawn. In the meantime, employers should revisit their social media policies, considering how the board might read those policies. Employers also should continue to pursue positive employee relations so that employees bring legitimate complaints to management before posting them on-line.
