Do Labor Laws Protect
Employees’ Social Media Posts?
Over the last couple of years, employers and employees have been keen to understand what the labor laws protect as far as social media use policies are concerned. Nowadays, an employer can be held liable for inflammatory or offensive social media posts or comments made by an employee (even from a personal account). At the same time, the employee may be protected for engaging in “concerted activities.” These somewhat contradicting laws make it a bit challenging for ordinary employers or employees to understand what is legal and what is not. We’ve highlighted the key issues and what you should know about labor laws and legal protection against social media activities.
Federal Labor Laws and Protected Concerted Activities
Before we go any further, let’s first see the kind of social media activities protected by federal law. The federal labor laws regulate relationships among unions, employees, and the management. These laws protect employees who engage either online or physically to improve the working conditions, increase pay, or resolve workplace issues.
Such activities are only concerted if they involve the interests of more than one employee. The mode of conduct should also be constructive and not intended to cause malice or reckless action. For instance, causing violence or blackmail. In such circumstances, the employee(s) won’t be protected by the labor laws even if the activity is concerted.
What Kind of Social Media Posts are Protected by Law?
The National Labor Relations Act (NLRA) and other state laws protect all employees, whether they belong to a union or not, for communicating issues affecting their wellbeing.
Below are some of the concerns employees can raise, share or post online and not face retaliation from the employer.
- Workplace discrimination and harassment
- Legal violations and claims
- Wages, benefits, and employee welfare
On the contrary, some social media posts are considered inflammatory or inappropriate, and the law may not protect the employee if the employer goes for disciplinary action. Some of these activities include:
- Hate speech or comment that violates any of the protected classes (age, sex, gender, religion, disability, etc.)
- A comment that is severe enough to cause a hostile working environment
- Posts that threaten employee safety or seeks to promote workplace violence
- Posts that expose trade secrets or confidential company information
What Employers Should Know Concerning Social Media Posts
Before discharging an employee on the grounds of negative comments or posts on social media, it’s wise to evaluate the impact of that employee’s conduct on the company and its colleagues. You should also consider if the clients or customers are willing to be served by an employee who made some offensive, hateful or racist comments. Another thing is for the employer to weigh the possible damage the activity may have on its reputation and culture.
To be on the safer side, the employer should adopt some social media use policies and enforce them right from the top-level management to the low-level employees. The human resource should be at the forefront in ensuring all stakeholder buy-in and that the policies are met without resistance.
HR should educate the employees on the importance of company reputation and organizational culture and their impact on its bottom line. It’s also worth telling the employees that any activity from their social media accounts that may violate the company image could subject them to disciplinary actions, including suspension, demotion, and even termination.
Explaining the kind of content that could create problems such as bullying, harassment, discrimination, and offensive language will also help employees watch their online activities and avoid getting themselves and the company into trouble.
Everyone within the organization should uphold these social media policies. Laws governing social media use should be dispensed without discrimination or favoritism; otherwise, the employer risks creating double standards, which will again attract employment discrimination claims.
While the freedom of speech under the First Amendment is a powerful law that gives everyone the freedom to express their thoughts, it comes with several limitations. Offensive posts or comments regarding age, sex, religion, gender, or disability are not protected by law — and the employer can quickly determine the appropriate cause of action for employees who engage in such activities.
Whether or not the employer can discharge an employee for off-duty conduct on social media depends on the federal laws, specific state laws, and whether or not the activity is lawful off-duty conduct. For instance, engaging in online political activities or protests is legal in several states, and employees are protected by law from employer retaliation.
While employers may not monitor everything employees engage in online, they have to educate their workers on what is illegal to share or post across social media. Employers can also create reputational, cultural, and legal risks by ignoring their workers’ off-duty conduct, especially if it constitutes harassment or discrimination based on the protected classes.
Navigating the complex labor and employment laws can be challenging both at the federal and state level. Working with employment lawyers who understand your industry and state laws will help you solve any legal challenges that might come up along the way.