Social Media and the Workplace: Avoid the Landmines

If your employees are like most, they’re using social media platforms such as Facebook, Twitter, and Instagram—and they probably post comments about your workplace from time to time.
What if those comments are negative?

What recourse do you have as their employer if your employees use social media to criticize your company, your managers, and/or their colleagues?
Can those employees be terminated on the grounds that complaining on social media is analogous to screaming at a manager in public?
As recently as 2012, the National Labor Relations Board (NLRB) took this position on the topic:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The Triple Play Case
In October of 2015, a decision by the U.S. Court of Appeals for the Second Circuit produced important judicial support for these rules.
The case involved a Connecticut sports bar, Triple Play Sports Bar and Grille, and two of their employees.

After one employee published a Facebook post angrily accusing Triple Play of mismanaging payroll taxes, a second employee “Liked” the initial comment, and a third employee then posted a critical comment on the same topic. The latter two employees were terminated by the company.
The National Labor Relations Board heard the case and ruled that the dismissals were unlawful because the employees were engaged in work-related discussions protected under Section 7 of the National Labor Relations Act (the Act).
The NLRB’s decision essentially sought to clarify that after-hours social media posts criticizing an employer should be looked at in accordance with the Supreme Court’s decision in NLRB v. Electrical Workers Local 1229. Applying that standard, disloyal statements lose the Act’s Section 7 protections if they “amount to criticisms disconnected from any ongoing labor dispute.”
The NLRB also held that allegedly derogatory, after-hours social media posts should be viewed with the Court’s decision in Linn Plant Guards Local 114 in mind. Using that standard, posts lose protection if they are made “with knowledge of [their] falsity, or with reckless disregard of whether [they were] true or false.”
Applying these standards, the NLRB found that the employees’ comments were neither disloyal nor defamatory.
The Board also found that the restaurant’s Internet/blogging policy in its employee handbook violated the Act by unreasonably dampening employees’ Section 7 rights. Triple Play’s policy stated, among other things, that employees were not permitted to “engage in inappropriate discussions about the company, management, and/or coworkers.”
The Second Circuit’s Ruling
Triple Play appealed the NLRB ruling to the Second Circuit, relying on precedent set in a case involving Starbucks. In the Starbucks case, an employee confronted a supervisor in a profanity-laced outburst in front of customers. The employee was terminated for conduct detrimental to his place of business, and the termination was upheld by the NLRB.
Triple Play’s attorneys argued that the conduct of their two terminated employees closely approximated that of the dismissed Starbucks staffer. But the appeals court disagreed, reasoning that accepting such an argument “could lead to the undesirable result of chilling virtually all employee speech online…”
Additionally, Triple Play did not appeal the Board’s decision that the second employee had engaged in protected concerted activity merely by clicking on Facebook’s “Like” or thumbs-up icon without adding any comment.
Interestingly, Triple Play’s decision not to challenge affirms for now the NLRB decision that employees are entitled to Section 7 protections when clicking an icon that simply implies their agreement with a coworker’s comments tied to their terms and conditions of employment.
Implications for Employers
What does all this mean for employers? Here is some practical advice for ensuring that you don’t run afoul of employment law when it comes to social media:

• As an employer, you are permitted to check all public information available on social networking sites to obtain information regarding applicants (or employees) and may use such publically available information when making employment decisions (in the same lawful manner as background information is otherwise obtained and used).
• It is still the best practice to follow all the rules of the Fair Credit Reporting Act before searching social media, i.e., obtain authorization to search social media prior to checking and provide the opportunity for an explanation/verification before taking adverse action.
• Be aware that Connecticut employers cannot require applicants or employees to provide social networking passwords as a condition of employment; several other states and local governments also have such bans.
• Implement a social media policy that is compliant with the current restrictive view held by the NLRB for now, until and unless courts say otherwise.

Bottom line: while employees have considerable latitude to express their opinions on social media regarding the terms and conditions of their employment, that latitude is not unlimited, and it’s not always clear where to draw the line.
Therefore, consulting with an employment law specialist can certainly aid employers in understanding and implementing a social media policy that provides for appropriate and lawful restrictions on an employee’s use of social media.