Federal Labor Law's Impact on Social Media in the Workplace

Social Media is an emerging area in employment law and presents new challenges for all employers.   Many of our clients have asked whether they can  prohibit employees from making disparaging remarks about employers and also monitor employee usage of social media.  The answer, like almost every question in the law is, it depends.

Recently, the National Labor Relations Board (the “Board”), the federal agency responsible for administering and enforcing the National Labor Relations Act (the “Act”) issued an Advice Memorandum to its regional offices that made clear that an employer  can discipline an employee for making certain disparaging remarks on Facebook.  However, this does not mean that employees can be disciplined for making any negative comments about the workplace on social media sites such as Facebook and Twitter.

Employee complaints on social media sites may be protected speech under the Act.  In general, social media communications will be protected under the Act when the communication seeks to induce or initiate group activity.  For example, if an employee communicates with a co-worker who is a “Friend” on Facebook about poor working conditions, it likely is protected concerted activity under the Act.   Therefore, an employer who disciplines an employee for making this comment will run afoul of the Act and could face an unfair labor practice charge with the Board.  On the other hand, an individual who merely complains about his employer on his own behalf does so at his own risk and will not be protected by the Act. 

Faced with these legal landmines, employers should adopt and update policies that address employees’ use of social media.  Such polices should be carefully worded and implemented so as not to run afoul of the Act.  Once you have adopted a social media policy, it is very important to train employees so that they understand the policy and that it will be enforced once it is implemented.