Online Reputation Management Blog

NLRB Defends Employee Free Speech on Facebook

In my post, Do You Need a Social Media Policy, I mentioned that the National Labor Relations Board (NLRB) released a recent report detailing the outcome of its investigations into 14 cases involving employee use of social media and employers’ social media policies.

In four cases involving employees’ use of Facebook, the NLRB’s Division of Advice found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the NLRB found that the activity was not protected.

Two weeks ago, in Hispanics United of Buffalo, Inc. v. Ortiz, an Administrative Law Judge ruled that five employees who were terminated because of comments they made on their Facebook page should be rehired.  The judge ordered the employees back to work, and held that the employees must be paid for their time off.

The Facebook conversations took place on a Saturday (outside of work hours) and involved a coworker who seemed to think her fellow employees were not doing enough to help their clients and the angry response by the affected employee followed by some crude complaints about working conditions by other employees.

The cases that have come before the NLRB, are generally decided on question of whether the social media activity of an employee is “concerted activity” that would be protected under the law and/or whether the employer’s social media policy is overly broad.

In this most recent case, the judge noted that “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves.”  The fact that the protected discussion is taking place in a public setting, visible to millions of non-employees for an indefinite period of time, did not affect the ultimate resolution of the case.

In the context of the NLRB’s social media decisions, factors used to determine whether the employee activity is “concerted activity” typically include:

  • Whether the employee discussed the post with other employees
  • Whether other employees responded to the posts
  • Whether the post was intended to prompt group action
  • Whether the post represented the collective concerns of employees

Individual concerns or complaints about an employer, broadly publicized on the internet, are unlikely to be deemed protected activity.  However, as some of the cases illustrate, in the 24/7 workplace, the intersection of work and social network can blur.

Policies that would “reasonably tend to chill employees in the exercise of their rights” under the National Labor Relations Act, including the right to engage in protected concerted activity, are unlawful.

The lessons gleaned from recent NLRB case law indicate that companies will need to carefully balance their online reputation management goals with labor law requirements.

Do You Need a Social Media Policy?

A Pew Research Center social networking study  (August 2011), reported that 65% of U.S. adults use social networking sites like MySpace, Facebook or LinkedIn.  Many are using these sites at work.  Some are using these sites to talk about work.  And a few are getting fired for it.

As a business owner, you basically have two choices in managing social media risk.  You can keep your fingers crossed and hope your employees don’t do or write anything stupid involving your company.  Or you can create a social media policy, support it with training, inform it with feedback, and empower employees to protect their company and brand.

Surprisingly, most U.S. companies have not taken the necessary steps to mitigate online reputation risk from their own employees. According to a Manpower report about the impact of social media in the global workplace, only 29% of U.S. companies had a social media policy.

From my perspective, the most striking data from the Manpower report was that 8% of U.S. companies have had their reputation negatively affected by employee use of social networking sites.

I don’t know the extent of the financial harm for the 8% of U.S. companies who suffered reputational damage, but I’m willing to bet that as soon as the PR crisis was over, the CEO was on the phone with her HR department asking for a social media policy.

A social media policy is not a vaccine, but it is better to set expectations and to have an open and transparent process regarding social media use by employees in and out of the workplace. Unfortunately, good judgment is relative. As a business owner, I would rather be sitting through a deposition with a social media policy in my hand, instead of a blank sheet of paper and a pencil.

If your company doesn’t have a social media policy, it needs one.  If your company has a social media policy, management should take a second look – especially after the National Labor Relations Board (NLRB) released a report about employee use of social media and employers’ social media policies.

Next week, I am going to take a closer look at the recent NLRB decisions and explain how you can use the lessons learned from these cases to create the best social media policy for your company.