Facebook Policies Tricky for Employers, Employees
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.
The board’s acting general counsel, Lafe Solomon, said 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 in an interview. “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 ambulnce company after she went on Facebook to criticize her boss. That case settled, with the company agreeing to change its blogging and Internet policy that had banned workers from discussing the company over the Internet.
Doreen Davis, a management-side labor lawyer based in Philadelphia, said many of her corporate clients are often “surprised and upset” when they learn they can’t simply terminate employees for talking about work online. “A lot of companies want their social media policies reviewed or they want to establish one for the first time,” Davis said.
The NLRB’s Solomon warns workers that not everything they write on Facebook will be permissible just because it discusses their job.
Only one case has actually led to a formal ruling. An administrative law judge found that a Buffalo, N.Y., nonprofit group illegally fired five workers after they posted Facebook comments complaining about workload and staffing issues.
The Chamber of Commerce’s Eastman wants to see what happens in closer cases where an employee goes “over the top” with criticism of a supervisor of employer. “Where will the board draw the line between concerted activity and an employer’s legitimate non-disparagement policy?” Eastman said.