“GOTCHA”: Social Media and the Labor Laws

Employees sometimes post unfavorable comments about their bosses or companies on Facebook or other social media sites.  Employers sometimes don’t take too kindly to such criticism and may take adverse job actions in response.  So far so good.

But what happens when social media criticism reflects joint action by a group of employees?  Let’s say one employee says to a group of employee friends that the company is stupid and unethical and underpays and its president is creepy and someone ought to do something about it?  And one of the group posts a comment to that effect?

Enter the National Labor Relations Board, which you may recall is charged with protecting group employee action from retaliation by employers.    This post I described is “protected concerted action” by employees and legally cannot result in retaliation.  Further, employer policies about social media cannot prohibit a wide range of posts, including the oft-banned comment that may damage the reputation or goodwill of the employer.

Interestingly, over-the-top language and personal affronts don’t change the result; in one case a post described a boss as a “scumbag” and the NLRB did not care — in the heat of labor disputes nasty things are said all the time.

Since NLRB rules in this area apply to all employers and not just those companies with a union presence, it is likely that management and even in-house counsel may lack sensitivity to these issues in both HR management and in drafting policies.  This area is a “gotcha” and one of those unfortunate ones where caerful study of the NLRB report, or actually undertaking the distasteful step of hiring counsel, may be indicated.


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