In the age of instant tweets and impulsive Facebook posts, some companies are still trying to figure out how they can limit what their employees say about work online without running afoul of the law.
Confusion about what workers can or can’t post has led to a surge of more than 100 complaints at the National Labor Relations Board — most within the past year — and created uncertainty for businesses about how far their social media policies can go.
“Employers are struggling to figure out what the right policies are and what they should do when these cases arise,” said Michael Eastman, labor law policy director at the U.S. Chamber of Commerce.
In one case, a Chicago-area car salesman was fired after going on Facebook to complain that his BMW dealership served overcooked hot dogs, stale buns and other cheap food instead of nicer fare at an event to roll out a posh new car model.
The NLRB’s enforcement office found the comments were legally protected because the salesman was expressing concerns about the terms and conditions of his job, frustrations he had earlier shared in person with other employees.
But the board’s attorneys reached the opposite conclusion in the case of a Wal-Mart employee who went on Facebook to complain about management “tyranny” and used an off-color Spanish word to refer to a female assistant manager. The worker was suspended for one day and disqualified from seeking promotion for a year.
The board said the postings were “an individual gripe” rather than an effort to discuss work conditions with co-workers and declined to take action against the retailer.
Those cases are among 14 investigations the board’s acting general counsel, Lafe Solomon, discussed in a lengthy report last month on the rise in social media cases. Solomon says federal law permits employees to talk with co-workers about their jobs and working conditions without reprisal — whether that conversation takes place around the water cooler or on Facebook or Twitter.
“Most of the social media policies that we’ve been presented are very, very overbroad,” Solomon said. “They say you can’t disparage or criticize the company in any way on social media, and that is not true under the law.”
The number of cases spiked last year after the board sided with a Connecticut woman fired from an ambulance company after she went on Facebook to criticize her boss. That case settled earlier this year, with the company agreeing to change its blogging and Internet policy that had banned workers from discussing the company over the Internet.
The National Labor Relations Act protects both union and nonunion workers when they engage in “protected concerted activity” — coming together to discuss working conditions. But when online comments might be seen by hundreds or thousands of eyeballs, companies are concerned about the effect of disparaging remarks.
