Q. An employee has posted some very unflattering things about the company on her Facebook page. Is there anything we need to consider before taking disciplinary action against her?
A. Yes. You should be aware that the employee’s actions may be protected by the National Labor Relations Act (NLRA). Section 7 of the NLRA protects employees’ right to engage in “concerted activity for the purpose of collective bargaining or other mutual protection.” That includes discussions about conditions in the workplace.
The NLRA protects the rights of private-sector employees, whether they are in a union or not.
If your employee’s online rants somehow pertain to the terms and conditions of employment—such as pay, work rules or policies, work hours, etc.—and especially if other employees have commented or joined the discussion, the employee’s activity is probably protected.
The National Labor Relations Board (NLRB) has been scrutinizing employers’ regulation of social media, and has recently filed charges against several companies with social media policies the NLRB considered overly broad. According to the NLRB, such policies, even if they are not enforced, are unlawful because they have a “chilling effect” on employees’ exercise of Section 7 rights.
You would be wise to have an attorney with experience inreview any social media policy before you publish it. You should certainly get advice from your attorney before you take any disciplinary action against this employee.
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