Social Networking as Protected Concerted Activity?
The impact of social networking sites on our daily lives continues to grow, and their presence in the workplace is impossible to ignore any longer. Where an employee runs afoul of the employer’s policy, sparks are bound to fly, and in at least one instance, the National Labor Relations Board is taking notice. Recently, the NLRB gave insight into how an employer’s social-networking policy may be viewed in the future when it issued a complaint against an employer for allegedly terminating an employee for posting a “negative remark about her supervisor on her personal Facebook page.”
While instances of employers taking action against employees who post disparaging comments about their manager is nothing new, it is the NLRB’s other allegation that has drawn the attention of employers nationwide:
“the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”
By this paragraph alone, the NLRB has signaled its intention to investigate the very policies that employers adopt in attempting to address the workplace related issues inherent to social networking sites. These policies are necessary to warn employees about what social networking conduct would be acceptable, and it appears that the NLRB will view the issue in a light most favorable to the employee. The NLRB investigates issues concerning unionized employees under collective bargaining agreements, but even employers with non-union employees should be cautious in taking action against employees who makes disparaging comments about their employer on a social networking site.
Though adopting sensible policies with respect to social networking sites is still the most prudent approach, employers should be cautious in taking any action against employees who make disparaging comments on a social networking site. I will continue to post developments on this important and evolving topic.
