February 7, 2017

There is no doubt that the internet and social media continue to change the way we live and work. While the ability to communicate instantly with employees, customers, partners and the public offers many advantages, social media in the workplace comes with its own risks and challenges.  

For employees, one of the key challenges is to understand and follow their organization’s social media policy and guidelines for posting work-related comments on Facebook, Twitter, YouTube,  LinkedIn and other social networks. For organizations, one of the top challenges is balancing the need to implement an effective social media policy and monitoring tool with staying in compliance with the National Labor Relations Act (NLRA).

A Mexican food chain found this out last year when the National Labor Relations Board (NLRB) picked apart its social media and internet use policy and procedures.

Through its social media monitoring, the company became aware of an employee’s negative Twitter comments about the restaurant chain’s wages and working conditions.   The company gave the employee a copy of its social media policy –  which wasn’t up to date on NLRB rulings – and asked him to remove the offending tweets.   He complied. General Counsel for the NLRB later challenged the company’s actions as interfering with “protected concerted activity,” which includes complaints about working conditions.

Luckily for the company, the tweets at issue were not part of an online discussion. Rather, they were one employee’s comments to the public at large.  As a result, the NLRB reversed the finding of the administrative law judge on the case, who initially found such tweets to be “concerted activity.”  

While individual comments, like those of the employee, may be ripe for removal and disciplinary action, once an isolated comment becomes an online discussion it may be a “protected concerted activity” under the NLRA. In that case, employers would be wise to confer with their attorneys before making any move that might be interpreted as quashing employee rights.

However, the ruling would likely have been different if the employee’s comments (or actions) were reckless. According to the NLRB, “reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets may cause concerted activity to lose its protection.”

In this decision, the tweets were found to be just one employee’s personal gripes and not a kind of social media picket line. Thus, the NLRB ruled that it was lawful for the company to require the employee to take down his negative tweets. Organizations can avoid getting into hot sauce over social media by carefully crafting a social media policy, reviewing and updating it regularly to comply with the NLRB, and training and educating employees and managers on what is and isn’t acceptable social media and internet use in the workplace.