COMMENTARY: 'Don't post that' - social media and its effects on the workplace

By Mark Morgan

The advent of social media – principally involving Facebook, Twitter, and Instagram – has become an outlet for people to connect with people, post photos, and express their opinions for the world to see. Although the First Amendment of the U.S. Constitution allows for freedom of speech, how far do the protections of the First Amendment go when an employee posts something regarding their workplace?

Sometimes that answer is not very clear-cut and can pose HR nightmares when determining how to deal employees that toe the line on what is appropriate content when an employer is involved. This article will address the legal standard used in social media cases and tips for making sure that employers stay in compliance with social media speech concerns.

The concerns surrounding social media speech have been present for many years now, but have only grown because of the increase in the number of social media platforms. In one recent case, a Yelp employee was terminated for calling her CEO “stingy” in a blog post. The employee wrote this post in regards to her $8.15 an hour rate of pay, causing her to struggle financially with the cost of living in the San Francisco area. Her termination reason stated that it was inappropriate to “comment on personnel or compensation matters,” stated the senior publication relations manager for Yelp.

The National Labor Relations Act (NLRA) has addressed the issue of employee speech in terms of discussing work environments. Let me be clear though, the language in the act is not clear cut, however. What the NLRA does is protect employees who engage in “protected concerted activity.” Court decisions applying the NLRA have determined that the types of activities protected are those that those that discuss employee wages, critiques of management, and work conditions. However, another prong to the test is whether the speech draws other employees to comment on the discussion. So to be clear, if an employee posts something on Facebook regarding poor sanitary conditions of the school that he or she works in, and other employees comment on the situation, that activity is more than likely protected by the NLRA. One important thing to note is that for speech to be concerted, other individuals do not necessarily have to comment on the issue. The original individual merely needs to “try” to get others to act.

When does an employee’s actions go too far? Essentially what the NLRA has said is that an employer can terminate an employee when his or her actions become disloyal, reckless, or malicious. For example, blatantly racist speech would fall outside the realm of protections offered by the NLRA. Some other examples that have fallen under the NRLA protections include an employee using profanity to his manager by complaining that he treats all his employees like slaves. Another example is one in which an employee called his boss a derogatory name on Facebook during the course of complaining about his work environment. Another employee “Liked” the Facebook status. This was deemed protected speech as well. So what kinds of activities go too far in the eyes of the NRLB? Essentially activities that hurt a company’s reputation by means of defamation is one example. Others include, disclosing trade secrets or confidential business and/or personal information, threatening co-workers, or using racist/sexist language.

Although the NLRB has provided some direction on what types of speech are protected, there are many gray areas that are yet to be decided. Before an employer makes an employment decision based on an individual employee’s conduct, it is important to review all of the facts and circumstances regarding the situation to make sure that the proper course of action is taken. When in doubt, discuss with your employment counsel the various options when dealing with speech that may or may not be protected activity.
Mark Morgan is an attorney for a nonprofit corporation in Flint, where he practices in compliance and federal labor law. He attended Michigan State University and the University of Detroit Mercy School of Law, graduating in 2013.