THELAW.TV

Is It Legal … For Employers To Limit Your Social Media Activities?



By Rachael Mason

Is it legal for employers to limit your social media activities?

As social media becomes a bigger and bigger part of our lives, this issue is still being decided. In general, however, the answer is yes. But when it comes to free speech, federal law protects workers—in certain cases—from punishment based on what they say.

“The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group,” said the National Labor Relations Board in a case ruling in September.

“The terms of a contract or an employee manual typically govern the behavior of an employee. The government, however, sometimes provides exceptions – such as in the case of whistle-blowing. Because social media is so new, it largely remains an open question whether exceptions will be found in this new arena,” says attorney Martin Sweet of legal information website THELAW.TV.

How seriously should I take my company’s rules about what I can and can’t do on social media?

The best approach is to follow your company’s policies. However, in some cases, a company’s rules have been shown to be too prohibitive.

This fall, the National Labor Relations Board issued a ruling on a case about policies for Costco Wholesale Corp. employees. Unlawful provision in the employee handbook included rules “prohibiting unauthorized postings on company property, discussing ‘private matters of (Costco) members and other employees,’ including sick leave and workers’ compensation issues, discussing ‘sensitive information’ like payroll information and online postings that ‘damage the company…or damage any person’s reputation,’ reported the Business Journal of Milwaukee.

Under the National Labor Relations Act, employees are allowed to talk about their wages and other aspects of their jobs with coworkers, unions or the government—both in real life and via social media—according to a memo about the Costco case issued by Michael Best & Friedrich of Milwaukee.

A new social media and blogging policy introduced by the Baltimore Fire Department has drawn criticism for limiting the First Amendment rights of employees, reported the Baltimore Sun on Nov. 2. The policy calls for employees to adhere to all department conduct rules when commenting via social media and prohibits information about fire scenes from being shared.

The rules were created after department employees used social media site to criticize city leadership and the decision to close several fire companies. Union representatives have called the fire department’s policy “too broad.”

Can you be fired for what you post on Facebook?

Yes. Again, the legality of Facebook-related dismissals would be judged on a case-by-case basis, so keep in mind that your posts are not necessarily considered protected speech.

For example, in a case heard by the National Labor Relations Board in September, a BMW salesman an Illinois dealership was fired after he put work-related photos and comments on his Facebook page. One criticized the dealership for serving hot dogs at a luxury event, while another was a picture of a Land Rover test-drive accident at a dealership (owned by the same company) next door, with the caption “Oops.”

The dismissal was legal, because the posts weren’t protected speech, the NLRB ruled in a decision made Sept. 28, 2012. The salesman’s comments were made on an individual basis and weren’t part of a group discussion about employment conditions, said the judge.

As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the comments about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether or not they were protected speech.

For more information about the NLRB, visit the board’s website at www.nlrb.gov.

What is the best way to talk about your job via social media?

Use caution and common sense when discussing your employer on social media channels. If you’re not sure if a post, tweet or photo will be OK with your bosses, then it might be best to reconsider adding it to your accounts.

In general, it’s best to avoid criticizing your company at all, says Dorie Clark in the Forbes article “How to Be Yourself on Social Media – Without Freaking Out Your Boss.”

Other tips include “Don’t risk your job needlessly — but if your values and your company’s don’t line up, think hard about whether it’s the right place for you” and “Being yourself is great, but having an attitude about it isn’t. If you have an agenda or want to embarrass your boss or your company, rethink your motives.”

Related Articles