Today we've been talking about social-media policies in the workplace. (See "The twitterable Twitter policy updated" over at my new site, jayshep.) In my recent book, Firing at Will: A Manager's Guide, I covered the legal problems that can crop up when you set out a Facebook policy. Here it is, from Chapter 3, "Risky Business":
Don’t Hit the “Like” Button
Private, nonunionized employers usually don’t need to worry about the National Labor Relations Act or the federal agency that enforces it, the National Labor Relations Board. The NLRB’s purview primarily extends to disputes between employers and unions. But one of the times when the NLRB sticks its nose into the private, nonunion workplace is when an employer creates rules that prevent employees from talking with each other about their working conditions.
Section 7 of the Act gives all workers the right to engage in “concerted activities,” a term that sounds ominous to employers and management. It’s a broad term that usually refers to employees’ getting together to form a union or engage in labor-related activities.
But it can also be used to describe workers’ informally complaining about bosses or pay or other goings-on at work. Employees have a right to do that, and employers—even those in nonunionized workplaces—can’t create policies restricting that right.
This has come up a lot recently with Facebook-related incidents. The scenario is increasingly common: an employee gets into some kind of beef with her supervisor, then logs onto the social-networking site and complains about her boss. The company then fires her. Problem? According to the NLRB, it may well be.
In a nonunion environment, an employer can fire an at-will employee for any reason, including an angry Facebook rant. (And before you start squawking about the First Amendment and freedom of speech, remember this: there’s no such thing as the First Amendment in a private employment context. You need a state actor—a person acting on behalf of the government—to have First Amendment concerns.) But Section 7’s concerted-activity clause creates a type of free-speech protection. And this is where Facebook comes in.
In the rash of recent Facebook cases the NLRB has brought against employers, the workplace was either unionized or the employer created a policy that restricted workers’ concerted-activity rights (or both). Well-meaning employers created policies that prohibit employees from saying mean things about coworkers or supervisors on Facebook or Twitter or some other social-media site. By doing this, the nonunionized employer gave the NLRB a hook to go after it, because a policy like that can be seen as squelching concerted activities among the workers. (One employee bitching about his boss is a terminable offense, but two employees complaining together can be protected concerted activity. Makes sense, right?)
So far, most of these NLRB Facebook cases have ended up with the employers settling to avoid costly and distracting litigation. And in my opinion, the NLRB has been overreaching and outstepping its proper authority. But the main takeaway is that you’d better be careful about creating workplace policies that prevent employees from discussing work. Idle gossip may be a negative influence at the workplace, but trying to legislate it away with policies may get you into hot water.
— from Firing at Will: A Manager's Guide (Apress, 2012), copyright 2011 by Jay Shepherd.