How far can we go to discipline employees for criticizing us online?

Q. Under our social media policy, we prohibit employees from disparaging our company in any social medium. Two of our employees recently uploaded a video to YouTube in which they criticize our safety record and say we don’t pay good wages. Can we terminate these employees for this activity?

A. Unless the conduct on YouTube was egregious, probably not. One potential problem is that enforcing your social media policy in these circumstances might violate the National Labor Relations Act (NLRA).

The NLRA gives employees the right to act together “for their mutual aid or protection” and prohibits employers from interfering with that right. It applies to all employers whether or not they have a union. If a reasonable employee would interpret your policy to prohibit activity that is protected under the NLRA, then having the policy could be an unfair labor practice.

Furthermore, if you discipline or terminate the employees, this might be a separate violation of the NLRA.

Believe it or not, employees have an NLRA-protected right to criticize their employers as long as they don’t cross the line by telling malicious lies, using excessive profanity or exhibiting significant insubordination in front of other employees. Also, the law’s protection does not extend to general attacks on the company’s products or services, as opposed to criticism focused on workplace conditions.

Thus, whether it is lawful to discipline the employees for their recent activities depends mostly on the specific content of the video. Exercise caution, because the National Labor Relations Board tends to protect activity that’s much worse than most employers are inclined to tolerate.