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Can Social Media Affect my Employment Law Claim?

“Free speech” in the employment setting is a loaded term. Private employers don’t have First Amendment concerns. There is no constitutional duty from them to allow or tolerate “free speech,” but they do have to consider the National Labor Relations Act and various state laws that prohibit employers from disciplining employees for off-duty conduct. While many of the off-duty conduct laws were drafted to address an employee’s use of tobacco off the worksite, many of them are written broadly enough to encompass use of social media, blogging, or other online activities. The NLRA protects an employee’s right to engage in “concerted activities” regarding the terms and conditions of employment.

Many online activities, especially something like a Facebook post regarding wages or working conditions that is shared with co-workers, are forms of “concerted activity” that are protected under the law until it reaches the point of being “disloyal” to the employer. “Disloyal” can be complicated to define, but it distinguishes between comments that are merely complaining about work from ones that actively seek to reduce business by driving customers away.

Employers should consider participating in appropriate social media venues and should put in place a social media policy to supplement an internet use policy. A few examples of specific issues which should be addressed include: clarifying infringements on company confidential information and intellectual property rights, slanderous or libelous statements that cannot be supported by evidence and are detrimental to the business, and failing to state that comments made are personal opinion and not made on behalf of the company.

This will vary from state to state, as more states are passing all-encompassing “off duty conduct” laws that prohibit, at least potentially, an employer’s ability to discipline an employee for online actions. That does not mean employers are without any mechanism for regulating an employee’s online activity:

  • First, an employer has the right to discipline employees for their online behavior during working hours. An employee is at work to do work, not to send Twitter updates, post on Facebook or maintain a blog. The one caveat to this rule is that employers must be consistent in enforcing this social media policy. An employer cannot discipline employees when they make negative comments about the company, but ignore other non-work related activity while an employee is on the clock.
  • Second, an employer can, and must, intervene when an employee’s online actions are placing the employer at legal risk. Such actions would be betraying confidential information, violating the Federal Trade Commission’s rules on endorsements of the company’s products, or threatening or harassing a co-worker.
  • Third, employers can act when an employee has crossed a line and acted disloyally. Complaining about your boss or your pay isn’t disloyal. Telling people that the hospital where you work is unsafe would be disloyal, though if there are real safety concerns raised, the employer needs to address them.

The concern about recruiting with social media is primarily one of allowing improper information (such as race, religious beliefs, sexual orientation, etc.) to “taint” the selection process. In addition to including numerous pictures, which will reveal a candidate’s age, sex and race, social media sites allow and encourage individuals to proclaim their religious and political beliefs. Once an employer reviews the website, it will be charged with knowledge of all this information that should not be included in the hiring process.

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