Q. An employee brought to the attention of his supervisor that a co-worker had posted a comment on social media saying that her supervisor is Scrooge, that the supervisor is probably planning to fire a bunch of people right before the holidays, and that everyone should complain about her unfair behavior so that the supervisor is the one who will get fired. The company has a social media policy that prohibits making disparaging comments about it or its employees. Can the company discipline the posting co-worker for these comments?
A. You should not discipline the posting co-worker for this social media post. An employee’s social media use is likely to be considered “protected concerted activity” under the National Labor Relations Act if the comments or posts involve the terms and conditions of employment; are an outgrowth of an earlier discussions about the terms and conditions of employment; involve or are directed to co-workers to invite further action; or involve certain protected topics such as job performance, staffing levels or protests of supervisory action.
Here, the posting employee appears to be protesting anticipatedand inviting co-workers to complain about the supervisor, so it is likely to be protected. You should also review and revise the social media policy to make sure that it is not overbroad. The National Labor Relations Board has sanctioned employers for social media policies that infringe on workers’ rights. Notably, it does not matter whether the employee is a union member.
Holly M. Robbins, Esq., is a shareholder and advises clients out of Littler Mendelson’s Minneapolis office.