On the other pole, is the employee’s right to communicate with other employees and third parties about working conditions that may be deleterious to the work environment of employees.
Section 7 of the National Labor Relations Act (“NLRA”) articulates the right of employees “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The right to engage in “concerted activities” for “mutual aid or protection” has been construed broadly to include online exchanges critical of an employer’s conduct as it relates to employees’ conditions of employment and manner of doing business, like subjecting employees to harassment and violations of labor standards.
While personal griping, i.e. complaints about how an employee, as an individual, may have been treated by an employer, is not, generally, protected under the NLRA, communications touching on generalized working conditions, like the failure of the employer to pay fair wages, overtime, vacation pay, or compel employees to hazard uncomfortable, or even dangerous working conditions, are likely to be considered the type of subject matter that is protected under federal law.
One recent exception to the generally broad construction of Section 7.
That exception is Richmond District Neighborhood Center (Case 20-CA-091748, October 28, 2014) in which the National Labor Relations Board held that two employees, who expressed over Facebook their mutual intent to disrupt the employer’s workplace and violate reasonable standards of conduct, were engaged communications that did not enjoy protection under the NLRA.
As in the case of email activity, employers should develop, and enforce consistently, written social media policies crafted to regulate how employees should acquit themselves on social media when it comes to discussing their employer.
Although any such social media policy should square with the mandates of the NLRA, it can require, among other things, that employees identify themselves and their relationship with the company.
Five employee guidelines when commenting in social media on the business:
1. Do not disclose the company’s confidential and proprietary information
2. Ensure that all posts concerning the business be true and accurate
3. Do not comment on legal matters
4.. Do not pass off their personal opinions concerning the business as official positons of the business
5. Do not use uncivil or incendiary language when referring to the business or in the context of a post in which the employee identifies herself as being associated with the business.
The Take Away:
All employers, regardless of size, should develop clear written policies and guidelines governing employees’ email and social media use.