The following is a regularly occurring column titled “Ask The Lawyer” from SyracuseFirst member Tully Rinckey.
Social Media Policies
The Rights and Responsibilities of Employers and Employees
With the relatively recent explosion of social media usage and sharing, businesses have become increasingly concerned with employees discussing work-related matters online. Some have started reprimanding employees for expressing feelings about work on social networks. Others are implementing policies that prohibit company issues from being discussed on social pages.
What can an employer do when an employee tweets a negative remark about his or her job or the business? Can he or she be scolded? Can his or her pay be docked or can he or she be fired?
As of January 2013, there were over 1.06 billion users registered on Facebook. Twitter reports that as of November 2012, users were sending out 15,000 tweets per second. While these numbers are staggering, it’s no secret that social media has become a “sounding board” for its users.
While instituting a policy that restricts employees’ discussion about work conditions may have been an employer’s first step, that isn’t an option. According to the National Labor Relations Board (NLRB), employees should be able to speak freely about work conditions, whether it’s with their voice or with a keyboard.
The NLRB’s guidelines in Section 7 of the National Labor Relations Act (29 U.S.C. §157) permit employees to engage in what is commonly called “protected concerted activity.” This basically states that employees are allowed to engage in activities with the goal of improving their pay or work conditions. This rule, however, is not without restriction and does not condone all uninhibited social media activity by employees. In a case featured in the New York Times, an Illinois bartender was fired for venting about not receiving a raise in five years. He then called the bar’s customers “rednecks” and that he hoped they “choke on glass as they drive home drunk.” The NLRB ruled that his comments were not “concerted efforts” to improve work conditions and confirmed the legality of his firing.
While restricting employees from discussing work conditions with other employees via social media is illegal, businesses can write detailed policies telling employees not to discuss confidential company information or to engage in vulgarity, intimidation or harassment. There is still much uncertainty as to the best way to limit employees from lashing out on social media, so it’s best to discuss your options and craft a policy with the help of an experienced business or employment law attorney.
Richard H. Sargent is the author of Syracuse First’s “Ask the Lawyer” column and a partner at Tully Rinckey PLLC in Franklin Square. Please send business-related questions to email@example.com.