Facebook Comments Essay

The National Labor Relations Board’s most recent decision demonstrates that not all employee social media posts are protected by the National Labor Relations Act. Questions remain, however, about the extent to which employees can be disciplined over social media activity We can expect the NLRB to continue to address the topic of employee rights as they relate to social media. Employers should review their employee handbooks and employment policies to ensure compliance with the NLRA and the NLRB’s jurisprudence. Employers should also consider training managers about permissible and prohibited conduct under the NLRA. Finally, employers should consider conducting their own education programs, including reminding employees of social media policies. 1. DOES AN EMPLOYEEE HAS ANY LEGAL RIGHT TO DESCIPLINE OR DISCHARGE AN EMPLOYEE OVER COMMENT ABOUT THE COMPANY? In my opinion addressing employee terminations resulting from Facebook posts, the National Labor Relations Board (NLRB) determines that the comments were concerted activity protected by the National Labor Relations Act (NRLA or Act). This latest decision reinforces that employers must exercise caution before terminating or disciplining employees as a result of their comments on social media. The answer is no. Employers should take note of the NLRB’s continued focus on social media policies and its view of social media activity as akin to water cooler conversation. The decision should prompt all employers to evaluate their policies regarding employee social media usage and speech outside the workplace. Employers should also train supervisory personnel on how to respond to the increased use of social media. 2. would you willing to settle the charges voluntarily; would you do so or insist on legal right to a formal NLRB HEARING ON THE CHARGES? I would insist on my legal right to a formal hearing with the NLRB. The NLRB’s main concern is that any restrictions employers put on workers’ social media conduct do not violate their rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity, such as discussing the terms and conditions of their employment with co-workers, even on Facebook. But that does not mean you have to let your employees run amok online. Your policy is more likely to survive scrutiny if you have made an effort to provide specific examples of what is and is not acceptable conduct. Here are some examples from the recent guidance on social media policies that are employee-tested, NLRB-approved: †¢Prohibiting â€Å"harassment, bullying, discrimination or retaliation,† even at home or after business hours. †¢Informing workers that they are â€Å"more likely† to resolve complaints by speaking with co-workers or going through the company, rather than posting grievances online. †¢Forbidding â€Å"inappropriate postings,† specifically threats of violence or discriminatory remarks. †¢Instructing employees not to reveal trade secrets or confidential information, as long as you detail the kind of information you mean, so there’s no chance of the policy being read to restrict Section 7 rights. 3. DID THE COMPANY COMMIT UNFAIR LABOR ACT? An employee was discharged lawfully after posting negative comments on Facebook critical of patient care, because the employee’s postings were merely an expression of individual gripes, as opposed to protected concerted activity. In this case, at least several coworkers responded to the posting; however, their messages reflected that the posting was individual and not group activity. The NLRB also rejects a policy requiring company approval for employees to identify themselves as employees on social networking sites or requiring the employees to state that their comments are their personal opinions and do not necessarily reflect the employer’s opinions. Not surprisingly, the NLRB also found it is unlawful to discharge any employee pursuant to an overbroad social media policy prohibiting disclosure of private or confidential information of another employee because the policy did not provide guidance on what the employer considered confidential. This is how I feel it was unfair labor act: †¢Ã¢â‚¬â€šA policy prohibiting employees from making disparaging comments when discussing the employer or its supervisors was unlawful because the policy did not make clear that it did not prohibit protected concerted activity. †¢Ã¢â‚¬â€šThe discharge of a paramedic i who posted demeaning comments concerning her employer’s clientele was lawful because there was no evidence of protected concerted activity: the comments did not mention any terms or conditions of employment, the posting was not discussed with any coworkers, and the comments were not for the purpose of inducing group activity or an outgrowth of collective concerns of the employee or her coworkers. The NLRB’s recent report provides helpful guidance to employers not wishing to become potential NLRB cases, including the following:†¢Ã¢â‚¬â€šCommunications that are not concerted are generally not protected. However, the cases highlight that a finding of concerted activity might turn on evidence not readily available to the employer, so caution is warranted. †¢Ã¢â‚¬â€šCommunications that are concerted (i.e., that are not merely an individual gripe) on matters of mutual concern to employees are likely to be found to be protected by the NLRA. †¢Ã¢â‚¬â€šCommunications that are protected do not become unprotected simply because the comments are communicated via the Internet and/or because they might be read by nonemployees as well. †¢Ã¢â‚¬â€šCommunications that are protected do not become unprotected just because they contain some critical (about the employer) or otherwise objectionable language. †¢Ã¢â‚¬â€šAn association policy that, reasonably interpreted, would tend to â€Å"chill† employees in the exercise of their rights under the NLRA is likely to be found unlawful by the NLRB if it is challenged. Given this new focus on social media, employers should: 1) Review their relevant employment policies to ensure that they are not overbroad and do not constitute potential unfair labor practices. 2) Proceed cautiously when determining whether to discipline an employee because of his or her comments in postings on Facebook, Twitter or other social media.