I think one area of law that is particularly confusing to employers and employees alike is that of free speech in the workplace. Almost everyone is aware that the First Amendment provides certain protections for speech. For the record, the First Amendment prohibits the government from abridging the freedom of speech. Therefore, the First Amendment does not apply to speech in a private-sector workplace. Of course, that does not mean that certain speech in the private-sector workplace is not protected, nor does it mean that a private-sector employee can anything they would like without consequence. The answer lies somewhere in between.
The National Labor Relations Act has long provided protection to employees to discuss wages, hours and working conditions. Recently the NLRB has extended that protection to discussions on social media sites like Facebook or Twitter. For example, the NLRB has found violations of the NLRA where an employee was fired for criticizing his or her boss on Facebook.
However, the NLRB’s protection does not necessarily extend to an employee posting a rant on his or her social media page, or making derogatory comments about customers on their own. The NLRB, so far, has only protected activity where two or more employees were discussing the workplace. Employee comments on social media that are mere complaints about or general dissatisfaction with the job would not be protected.
Another example of unprotected speech occurred when an employee listed his occupation on LinkedIn as “f*cktard.” Clearly, the employee was not engaging in any discussion of workplace, so he was not under the NLRA’s protection. The NLRA will also not protect patently untrue, egregiously disloyal, threatening or harassing speech.
The NLRB has also made it clear that it will be closely reviewing social media policies for violations of the NLRA. The NLRB indicated that employers should not draft broad social media policies that could prohibit, discourage or chill discussions about wages, hours or working conditions. An appropriate social media policy will specifically discuss the conduct prohibited (e.g. do not discuss trade secrets), specifically inform the employees that they retain their rights under the NLRA and should not use vague terms like “appropriate” or “professional” without providing clear definitions.
The NLRB has a great deal to say about employee conduct and social media policies (which I plant to discuss in a future post), and any social media policy should be discussed with legal counsel before implementation.