WATCH OUT, That Social Media Post Could Cost You Your Job

It was one of the last warm days of the season in New England, when you feel the pressing need to soak up every bit of warmth before the chill of the cold has you shuttered inside for the next eight months. I was outside on one of these numbered days waiting for my husband to complete his perusal of the latest offerings at the newest grocery store chain to hit our area. As I lounged on the hard bench basking in the last bastions of warmth in the hot sun, I opened a social media app on my phone and started scrolling through the posts of “friends” to pass the time.

As my finger gently flicked the screen passing by the usual food posts found on the following day of someone’s gastronomical cravings, I stopped when I came across a post that read:

“higher ups like the ones I work for are cheapskates and pay low wages that no one can live on.”

Automatically, my mind started to analyze whether this post from an unhappy employee was something that could cost him his job.

My mind scanned through the files in my head about the latest cases that I had read and researched about employees that were disciplined for posting about their employer on their social media account(s). The National Labor Relations Board (NLRB) has made it clear that posts where employees are discussing wages, hours or conditions of employment cannot be the subject of disciplinary action by an employer, because such postings are considered “protected concerted activity.” It is likely that the post that I came across would be considered protected. More information would be needed about the circumstances surrounding the post to make an accurate determination.

The NLRB released in an advice memo that employers should be aware if the company’s social media policy proposes specific expectations or behaviors for their employees as well as proposing specific types of statements on these forums, the policy could very well be in violation of the National Labor Relations Act (NLRA). An example of a company’s policy that is a violation of the NLRA is one requiring employees to make sure that their posts are always accurate and honest. Additionally, a policy that requires employees to correct a mistake about misinformation in a post quickly is also a violation. The NLRB disagrees with such policies on the basis that the Board and court precedent has already recognized that in a labor dispute employees have the right to make a range of statements even inaccurate ones as long as those statements do not amount to malicious defamation.

Smart employers will have a clear social media policy in the company’s employee handbook and smart employees will think twice before they post about their employer on social media forums.

If you don’t have a handbook or a social media policy, one can be drafted and customized for your company. If you have an existing handbook or social media policy, it should be reviewed and updated to ensure that it’s in compliance with the law and the best one for your company and your employees. Simply Good Law can help you with these matters.

This article is for information purposes only and is not meant to be construed as legal advice. For further information or discussion contact me at jennie@simplygoodlaw.com or at 978-681-0017.